1 


i:^U(^-^^^^ 


STUDIES  IN  CONSTITUTIONAL  LAW 


DUE   PROCESS  OF   LAW 


UNDER  THE 


Federal  Constitution 


BY 

LUCIUS  POLK  McGEHEE 

PROFESSOR    OF   LAW   IN    THE   UNIVERSITY    OF    NORTH    CAROLINA;    LATELY 

ASSOCIATE   EDITOR   OF   THE  AMERICAN   AND    ENGLISH   ENCYCLOPAEDIA 

OF    LAW,   SECOND    EDITION 


EDWARD  THOMPSON  COMPANY 

NORTHPORT,   LONG  ISLAND,   N.  Y. 
1906 


Copyright  1906 

by 

Edward  Thompson  Company 


All  rights  reserved 


PREFACE 


The  plan  of  tlie   series  to  which  this  volume 
belongs   offers   a  happy   opportunity  to   trace  the 
application  of  certain  fundamental  ideas  throughout 
the  extended  field  of  American  law.     By  isolating 
''  due  process  of  law  "  and  devoting  to  it  a  separate 
N       "  study  "  the  history  and  elements  of  the  concep- 
^        tion,  its  relation  to  other  constitutional  guaranties, 
^         and  the  part  it  has  performed  and  is  still  perform- 
J»\n      ing  in  the  upbuilding  of  a  system  of  individual  rights 
should  emerge  more  clearly  than  is  possible  in  a 
general  treatise  on  constitutional  law.      If  I  have 
failed  to  effect  in  some  measure  these  objects,  the 
\),      fault  is  wholly  my  own.     No  richer  or  more  inter- 
im       esting   field   could   offer   itself   to   the   student   or 
practitioner.  / 

The  object  of  this  study  is  to  present  the  views 
of  the  subject  entertained  by  the  United  States 
Supreme  Court,  upon  which  devolves  the  final  de- 
p  cision  of  questions  of  due  process  both  in  proceed- 
v^  ings  by  the  federal  authorities  and  in  those  by  the 
state.  According!}^,  the  material  of  this  volume  is 
primarily  the  decisions  of  that  court.  An  effort  has 
been  made  to  include  all  the  decisions  of  the  court 
through  199  U.  S.  Decisions  of  other  jurisdictions 
have  been  used  only  as  far  as  seemed  necessary  to 
round  out,  to  the  best  of  my  judgment,  the  discus- 
sions of  the  questions  involved  from  an  historical 
or  logical  point  of  view. 


PREFACE 


^  Due  process  of  law,  under  the  shaping  influence 
of  the  decisions  of  the  Supreme  Court  of  the  United 
States,  is  in  course  of  active  growth.  Not  that  the 
conception  is  receiving  new  elements,  but  its  applica- 
tion is  being  delimited  by  the  gradual  "  process 
of  judicial  inclusion  and  exclusion."  And  this 
process  demands  the  consideration  of  far-reaching 
principles  whose  estimation  is  difficult  in  proportion 
to  their  very  comprehensiveness.  Contemporary 
public  opinion  as  reflected  with  more  or  less  exact- 
ness in  the  minds  and  opinions  of  the  judges;  the 
views  entertained  on  economic  and  moral  questions, 
on  the  functions  of  the  central  government  in  respect 
of  the  states,  on  the  duties  of  all  government  with 
regard  to  its  citizens  —  all  these  things  tend  to  be 
woven  into  the  precedents  of  our  jurisprudence.  As 
yet  the  decisions  on  this  subject  under  the  National 
Constitution  extend  over  hardly  more  than  a  genera- 
tion. It  will  be  seen  that  the  task  of  mapping  out 
the  field  presented  for  study  is  full  of  difficulty.  I 
have  tried  constantly  to  emphasize  the  general  prin- 
ciples involved  in  the  discussion,  and  as  far  as  possi- 
ble to  state  the  views  of  the  court  in  its  own  lan- 
guage. By  this  course  I  hope  the  reader  may  have 
at  hand  the  means  of  weighing  and  checking  the 
statements  made. 

Owing  to  complications  which  could  not  be  fore- 
seen or  avoided,  the  printing  of  this  volume  has  been 
considerably  delayed.  In  the  meantime  a  decision 
of  far-reaching  importance  on  a  subject  falling 
within  its  scope  has  been  rendered  by  the  Federal 
Supreme  Court,  —  Haddock  v.  Haddock.  201  U.  S. 
562. 

In  the  Haddock  case,  by  the  decision  of  a  bare 


PREFACE 


majority  of  the  court,  against  the  dissent  of  Harlan, 
Brewer,  Brown,  and  Holmes,  JJ.,  it  was  finally 
decided  that  a  decree  for  divorce  rendered  in  a  state 
other  than  that  of  the  matrimonial  domicil  of  the 
parties  at  the  suit  of  a  husband  bona  fide  domiciled 
in  the  state  of  the  forum,  against  the  wife  who  re- 
mained a  resident  of  the  state  of  the  matrimonial 
domicil,  is  not  a  decree  in  rem.  It  is,  therefore,  not 
a  proceeding  in  which  constructive  service  by  pub- 
lication, in  accordance  with  the  law  of  the  forum, 
against  the  nonresident  defendant  imparts  any 
validity  to  the  decree  as  against  her;  and  such  a 
decree  is  not,  when  brought  in  question  outside  the 
state  where  it  is  rendered,  within  the  protection  of 
the  full  faith  and  credit  clause  of  the  United  States 
Constitution.  The  interesting  correlative  question 
of  the  effect  of  such  a  decree  within  the  state  of  the 
forum  is  not  examined.  Is  it  valid  there  as  against 
both  parties?  This  would  contradict  the  reasoning 
of  Pennoyer  v.  Neff,  95  U.  S.  714.  Is  it  valid  as  to 
the  plaintiff  and  not  against  the  defendant?  This 
would  explode  the  principle  stated  by  the  court  in 
Atherton  v.  Atherton,  181  U.  S.  155,  that  a  wife 
without  a  husband  or  a  husband  without  a  wife  is 
'^  unknown  to  the  law;  "  and  would  be  as  if,  the 
relative  position  of  the  objects  A  and  B  being  the 
question,  the  position  of  A  with  respect  to  B  could  be 
changed  without  affecting  the  position  of  B  with  re- 
spect to  A.  It  has  been  said  that  the  states  are  still 
at  liberty,  upon  principles  of  international  comity, 
to  recognize  the  divorce  decrees  of  sister  states,  ren- 
dered under  the  circumstances  of  the  Haddock  case, 
if  they  choose  to  do  so.  But  it  would  seem  that  such 
a  recognition,  while  not  affected  by  the  full  faith  and 


PREFACE 

credit  clause  of  the  Constitution,  must  involve  a 

determination  by  the  state  of  the  federal  question 

of  what  amounts  to  due  process  of  law  under  the 

Fourteenth  Amendment.     In  the  view  of  the  writer, 

the  opinions  of  the  dissenting  justices  embody  the 

correct  view  of  the  matters  decided,  and  the  holding 

is  to  be  earnestly  regretted.     It  illustrates  strikingly 

the  presence  of  some  of  the  formative  influences 

above  mentioned. 

L.  P.  McG. 

University  of  North  Carolina, 

Chapel  Hill,  N.  C, 

July,  1906. 

vi 


TABLE   OF   CONTENTS. 

CHAPTER  I. 

THE  HISTORY  AND  SCOPE  OF  THE  CONSTITUTIONAL  GUAR- 
ANTY  OF  DUE  PROCESS  OF  LAW. 

PAGE 

Introductory    1 

History  of  the  Phrase 3 

In  English  Law  Before  the  Revolution 3 

In  American  Constitutions 17 

"  Due  Process  "  in  the  Federal  Constitution 17 

In   the   Fifth   Amendment 17 

In  the  Fourteenth   Amendment 19 

Equivalent  Phrases  in  State  Constitutions 23 

Scope  of  the  Guaranty  in  English  and  American  Law 24 

The  English  Guaranty  No  Bar  on  Parliament 24 

American  Guaranty  Restrains  All  Governmental  Activity.    ..  26 
Due  Process  in  the  Fourteenth  and   in  the  Fifth  Amendments 

Compared 3" 

Relation   of   Federal   Government  Toward  Due  Process  by  the 

States    35 

Supervisory  Powers  of  the  Supreme  Court  of  the  United  States  35 

Direct  Enforcement  of  Due  Process  by  Congress 42 

CHAPTER  II.  '. 
THE  ELEMENTS  OF  DUE  PROCESS. 

Definitions  Collected  and  Their  Relations  Shown 49 

How  the  Presence  of  Due  Process  Is  Tested 53 

Historical  Test  —  Positive  and  Inclusive 53 

Intrinsic  Test  —  Both  Inclusive  and  Exclusive 56 

Some  Fundamental  Requisites 58 

Equality  and  Generality  of  the  Law 60 

The  Requirement  Stated  and  Explained 60 

Confiscatory  Legislation 64 

Confusing  Functions  of  Different  Departments   of  Govern- 
ment     "° 

Notice  and  Hearing '3 

The  Requirement  of  Notice  and  Hearing  Generally 73 

What  It  Includes  under  Our  Constitutional  Guaranties 76 

Notice    and   Hearing   Must    Be   Required,    Not   Matters    of 

Grace    ^^ 

vii 


Vlll  TABLE  OF  CONTENTS. 

CHAPTER  III. 
JURISDICTION  AND  DUE  PROCESS. 

PAGE 

Tbe  General  Requirement  of  Jurisdiction 85 

Judgments  in  Personam 89 

Judgments  Against  Nonresident  Joint  Debtors,  etc   93 

Jurisdiction  Over  Foreign  Corporations 100 

Extraterritorial  Control  in  Equity  Over  Property  and  Rights 

of  Action 105 

Judgments  in   Rem 107 

Extension  of  Conception  of  Proceedings  In  Rem   112 

Situs  of  Personal  and  Intangible  Property  as  AflFecting  Juris- 
diction      118 

Divorce  Decrees 122 

Bankrupt  and  Insolvent  Laws 130 

Jurisdiction  as  to  Crimes  and  Penalties 133 

CHAPTER  IV. 

THE  RIGHTS  PROTECTED  BY  DUE  PROCESS  OF  LAW. 

Life,  Liberty,  and  Property 138 

Vested  Rights  and  Due  Process  of  Law 142 

Vested  Rights  and  Other  Constitutional  Guaranties 145 

Ex  Post  Facto  Laws  and  Bills  of  Attainder 146 

Laws  Impairing  the  Obligation  of  Contracts 148 

All  Laws  Impairing  Vested  Rights  Condemned  by  Due  Process.  .  153 

What  Rights  Are  Vested  or  Otherwise 155 

Expectancies   and  Mere   Contingencies 157 

Curative  Acts 158 

Procedure 159 

What  the  Term  Covers 159 

Tribunal  Before  Which  Trial  Is  Had 162 

Procedure  in  Criminal  Cases 164 

Proceedings  for  Contempt 169 

Statutes  of  Limitations 171 

Remedies     174 

Laws  Annexing  Conditions  or  Penalties  to  Rights  of  Action  or 

Prosecution    178 

Evidence  and  the  Creation  of  Presumptions 180 

CHAPTER  V. 

THE  PERSONS  PROTECTED  BY  DUE  PROCESS. 

Corporations    189 

Aliens  —  Immigration   Laws 190 

Inhabitants  of  Acquired  Territory 197 


TABLE  OF  CONTENTS.  ix 


CHAPTER  VI. 

PAGE 

THE    PARA^IOUNT    RIGHTS    OF    THE    STATE    AND   DUE 

PROCESS    201 


CHAPTER  VII. 

TAXATION. 

The  Taxing  Power  and  Its  Extent 208 

Limitations  on  the  Taxing  Power 215 

Property  Taxed  Must  Be  Within  Jurisdiction 218 

Assessment  of  Property  Lying  Partly  in  Several  Jurisdictions.  223 

Exemptions  from  Taxation 226 

The  Public  Purpose  of  the  Tax 228 

Summary  Proceedings  for  Collection 232 

Notice  and  Hearing 235 

The  Hearing  Actually  Provided 242 

Local  Assessments   246 

CHAPTER  VIII. 

THE  EMINENT  DOMAIN. 

Its  General  Nature  and  Limitations 253 

Tlie   Public  Purpose  or  Use 255 

Various  Public  Uses  Enumerated 256 

The  Criterion  of  a  Public  Use 262 

The  Necessity  of  Taking  or  Appropriation   272 

Compensation    278 

Necessity  for  Compensation 278 

Property  for  Which  Compensation  Must  Be  Provided 283 

Amount  of  Compensation  and  Provision  for  Payment 289 

What  Amounts  to  a  Taking  of  Property 291 

Notice  and  Hearing 296 

CHAPTER  IX. 

THE  POLICE  POWER. 

Characteristics  and  Limitations 300 

Its  Exercise  Must  Be  Reasonable 306 

Police  Power  or  Eminent  Domain  as  Dependent  on  Reason- 
ableness      309 

Classification  311 

Business   Affected  with  a  Public  Interest  314 

Regulation   of  Rates 318 

Deprivation   of   Property 328 

Private  Rights  Must  Be  Involved 328 


TABLE  OF  CONTENTS. 


PAGE 

Professions  and  Offices  as  Property 333 

Limiting  the  Enjoyment  of  Property 336 

Confiscation  of  Property 337 

Conseqn-ential  Damage  from  Police  Regulation 338 

Imposition  of  Expense  Connected  with  Police  Regulation 330 

Creation  of  Liabilities  Connected  with  Enjoyment  of  Property 

or    Occupation 342 

Deprivation  of  Liberty 343 

Freedom  of  Contract  and  Business 345 

I  Regulated  for  Public  Morals,  Health,  or  Safety 345 

I  Business  Affected  with  Public  Interest 349 

Regulation  in  the  Interest  of  Certain  Classes  —  to  Prevent 

Oppression   353 

Regulation  in  the  Interest  of  Economic  Prosperity  and  Gen- 
eral Welfare 357 

Exaction  of  Licenses 363 

Committing  Legislative  or  Judicial  Functions  to  Executive ....   365 

Notice  and  Hearing 370 

Due  Process  Does  Not  Require  Jury,  and  May  Be  Executive. . .   371 
Right  to  Destroy  Before  Hearing  Limited  by  Necessity 372 


Definition. 


DUE  PROCESS  OF  LAW. 

CHAPTER  I. 

THE  HISTORY  AND  SCOPE  OF  THE  CONSTITU- 
TIONAL GUARANTY  OF  DUE  PROCESS 
OF  LAW. 

INTRODUCTORY. 

DUE  PROCESS  OF  LAW,  as   the  meaning  of  the    chapter 
words  has  been  developed  in  American  de-  '■ — 

cisions,  implies  the  administration  of  equal 
laws  according  to  established  rules,  not  violative  of 
the  fundamental  principles  of  private  right,  by  a 
competent  tribunal  having  jurisdiction  of  the  case 
and  proceeding  upon  notice  and  hearing.*  The 
phrase  is  and  has  long  been  exactly  equivalent  to 
and  convertible  with  the  older  expression  ''the  law 
of  the  land."  2 

1  In  effect,  this  description  agrees  with  that  given  by  the  court  in 
Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226. 

2  See  infra,  p.  16. 
We  shall  see  that  "  due  process  of  law  "  appears  in  English  law 

at  least  as  early  as  1354,  when  we  find  it  used  in  an  Act  of  Parlia- 
ment, 28  Edw.  Ill,  c.  3,  and  in  a  petition  to  Parliament  by  the  Earl 
of  Arundell  for  the  removal  of  the  attaint  on  his  father,  2  Rot. 
Pari.  256,  257.     See  infra,  pp.  9,  65. 

It  is  perhaps  worth  noticing  that  the  writ  of  novel  disseisin,  in 
use  since  about  A.  D.  1166,  charged  the  tenant  with  having  disseised 
the  demandant  "  unjustly  and  without  a  judgment,"  in  juste  et  sine 
judicio.  Glanville,  lib.  xiii,  c.  33.  "  As  to  the  words  sine  judicio, 
which  are  equivalent  to  the  absque  ordine  judiciario  of  the  canonists, 
we  may  translate  them  by  '  without  process  of  law.' "  2  Poll,  and 
M.  Hist.  52.  For  earlier  uses  of  these  phrases  in  English  and  canon 
law,  see  2  Poll,  and  M.  Hist.  47,  note  4.     Among  other  instances  is 


DUE  PROCESS  OF  LAW 


Chapter  The  basis  of  due  process,  orderly  proceedings 
'■ —  and  an  opportunity  to  defend,  must  be  inherent  in 


In  various 

legal 

terns. 


ie"glfsy°s"^  every  body  of  law  or  custom  as  soon  as  it  advances 
beyond  the  stage  of  uncontrolled  vengeance.  In- 
deed, the  emphasis  placed  on  a  literal  adherence 
to  customary  rules  of  procedure  is  one  of  the  most 
marked  features  of  primitive  law,  and,  with  the  ad- 
vance of  civilization  and  the  application  of  rejflection 
to  old  collections  of  custom,  the  principle  of  notice 
and  an  opportunity  to  defend  would  take  its  place  as 
a  part  of  the  jus  gentium,  to  become  later  the  law  of 
nature,^  or  the  law  of  God.-*  The  idea  was  familiar 
to  the  Jewish  law,^  and  in  the  Roman  law  may  be 
discovered  underlying  the  conception  of  ''justice," 
as  ''the  steadfast  and  continued  disposition  to  render 
to  every  man  his  rights,"*^  while  two  lines  from 
Seneca, 

"  Qui  statuit  aliquid,  parte  inaudita  altera, 
Aequum  licet  statuerit,  baud  aequum  f  uerit,"  ' 

have  become,  through  Lord  Coke,^  a  maxim  of  Eng- 

cited  Leges  Benrici,  74,  1    (about  A.  D.  1115),  where,  in  connection 
with  homicide,  occurs  qui  injuste  vel  sme  judicio  occisi. 

3  Y.  B.  9    Edw.  IV,  14,  pi.  9. 

4  Rex  V.  Cambridge  University,  1  Stra.  558,  567. 

5  "  Doth  our  law  judge  any  man  before  it  hear  him  and  know  what 
he  doeth?"     John  vi.  51. 

«  The  opening  words  of  the  Institutes  are :  Justitia  est  constans 
et  perpettia  voluntas  jus  suum  cuique  trihuere.  "  Due  process  of 
law,"  says  Mr.  Justice  Matthews,  "  in  spite  of  the  absolutism  of 
Continental  governments,  is  not  alien  to  that  code  which  survived 
the  Roman  Empire  as  the  foundation  of  modern  civilization  in  Eu- 
rope, and  which  has  given  us  that  fundamental  maxim  of  distributive 
justice,  suum  cuique  tribuere."     Hurtado  v.  California,  110  U,  S.  516. 

1  Seneca,  Medea,  199,  200.     The  lines  may  be  rendered: 

Who  hath  adjudged  of  aught,  one  side  unheard. 
Just   though    the   judgment,  were   himself   unjust. 

sBagg's  Case,  11  Coke  99n.. 


DUE  PROCESS  OF  LAW 


lish  law,^  the  aphoristic  expression  of  the  soul  of    Chapter 

due  process.  

'-  But  whatever  may  be  the  case  in  other  systems, 
due  process  is  fundamental  in  American  law,  and 
under  the  Constitution  of  the  United  States,  as 
under  the  constitutions  of  the  individual  States,  no 
person  can  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  or  except  by  the  law  of 
the  land. 

This  book  is  confined  to  an  investigation  of  the  vo"iumef°* 
requirements  of  due  process  in  the  Constitution  of 
the   United   States,    and  the   treatment  of  similar 
clauses    in    State    constitutions    will   be    incidental 
merely. 

As  we  shall  see,  several  of  the  elements  of  this 
general  characterization  have  been  developed  by  the 
courts,  in  seeking  the  real  content  of  due  process  of 
law  as  the  phrase  was  adopted  in  our  constitutions 
from  the  English  law.  But  there  the  same  exigency 
for  determining  the  latent  meaning  of  the  words  did 
not  exist.  It  was  used  as  equivalent  to  the  law  of  the 
land,  and  imported  every  due  and  regular  proceeding 
in  a  cause  in  accordance  with  statute  or  common  law, 
implying  notice  and  hearing. 

HISTORY   OF   THE   PHEASE. 

In  English  Laiv  Before  the  Revolution. 

The  39th  chapter  of  the  Magna  Carta  of  King  ^^agn^ 
John^  provides  that  ''No  freeman  shall  be  taken,  ''•^'' 

94  Bl.  Com.  282;  Broom's  Legal  Maxims,  8th  Am.  ed.,  113;  Bona- 
ker  V.  Evans,  16  Q.  B.  162,  71  E.  C.  L.  162;  Hovey  v.  Elliott,  167 
U.  S.  409. 

1  Magna  Carta,  17  John,  1215,  e.  39.     The  translation  is  that  of         ' 
Bishop  Stubbs,  1  Const.  Hist.  Eng.  577. 


DUE  PROCESS  OF  LAW 


C?hapter    or  imprisoned,  or  disseised,  or  outlawed,  or  exiled, 

'■ —  or  any  wise  destroyed;  nor  shall  we  go  upon  him, 

nor  send  upon  him,  but  by  the  lawful  judgment  of 

The  confusion  running  through  many  modern  commentators  and 
writers  as  to  the  form  and  numbering  of  this  provision  of  Magna 
Carta  justifies  a  few  words  of  explanation.  The  substance  of  the 
provision  forms  chapter  29  of  the  Articles  of  the  Barons,  which  was  a 
memorandum  of  the  heads  of  the  agreement  between  John  and  the 
Barons,  from  which  the  Great  Charter  was  afterwards  reduced  to 
formal  shape.  In  this  instrument  the  chapter  stood :  "  Ne  corpus 
liberi  hominis  capiatur,  nee  imprisonetur,  nee  dissaisietur,  nee  utla- 
getur,  nee  exuletur,  nee  aliquo  modo  destruatur,  nee  rex  eat  vel  mittat 
super  eum  vi,  nisi  per  juditium  parium  suorum  vel  per  legem  terrae." 
The  same  provision  forms  in  the  reissues  of  the  Great  Charter  by 
Henry  III,  c.  32  in  the  first  reissue,  1  Hen.  Ill,  1216;  c.  35  in  the 
second  reissue,  2  Hen.  Ill,  1217;  c.  29  in  the  third  reissue,  9  Hen.  Ill, 
1225.  The  Charter  was  originally  issued  without  division  into 
chapters  or  paragraphs,  though  the  Articles  of  the  Barons  was  divided 
into  separate  paragraphs  unnumbered.  The  division  into  numbered 
paragraphs  was  introduced  in  the  statute  books  for  convenience  of 
reference.     Thompson,  Magna  Carta,  159,  445. 

To  a  comparatively  recent  period,  the  only  copy  of  the  Charter 
printed  in  the  statutes  was  that  of  9  Henry  III,  and  this  was  the 
copy  printed  and  commented  on  in  the  Second  Institute  by  Lord 
Coke.  Consequently,  it  is  easy  to  understand  how  this  provision  of 
Magna  Carta  was  usually  referred  to  as  chapter  29.  In  more  mod- 
ern times,  and  especially  since  the  beautiful  edition  of  the  Great 
Charter  in  all  its  various  forms  prepared  by  Blackstone  from  a 
careful  collation  of  the  manuscripts  available  to  him  and  issued  by 
the  Clarendon  Press  in  1759,  the  practice  of  referring  to  the  original 
Charter  has  become  usual. 

The  amount  of  confusion  on  these  matters  in  quarters  where  it 
would  least  be  expected  is  surprising.  See  Cooley's  Const.  Limit., 
6th  ed.,  429,  and  the  address  of  Chief  Judge  Parker,  of  the  New 
York  Court  of  Appeals,  before  the  Bar  Association  of  Georgia,  re- 
printed in  the  American  Law  Review  for  1903.  37  Am.  Law  Rev. 
643, 

It  may  be  added  that  the  clause  "  nulli  vendemus,  nulli  negabi- 
mus,  aut  differamus,  rectum  aut  justicium,"  which  immediately  fol- 
lows in  the  Great  Charter,  is  numbered  as  a  separate  chapter  in  the 
earlier  issues  (e,  40,  17  John;  c,  33,  1  Hen,  III;  c,  36,  2  Hen.  Ill), 
and  its  equivalent  in  the  words  "  ne  jus  vendatur  vel  diflferatur  vel 
velitum  sit"  is  chapter  30  of  the  Articles  of  the  Barons,  In  the 
third  reissue  of  Henry  III,  this  provision  forms  a  part  of  chapter  29. 


DUE  PROCESS  OF  LAW 


his  peers' orjby  the  law  of  the  land."    This  provi-    Chapter 

sion  appears  in  the  reissues  of  the  Great  Charter,  '■ — 

with  the  insertion  in  the  second  (2  Hen.  Ill,  A.  D. 
1217)  and  third  (9  Hen.  Ill,  A.  D.  1225)  charters, 
of  Henry  III  of  the  words,  "of  his  freehold  or 
liberties,  or  free  customs,"  so  that  the  clause  in  its 
final  form  is:  "No  freeman  shall  be  taken  or  im- 
prisoned or  disseised  of  his  freehold,  or  liberties,  or 
free  customs,  or  outlawed,  or  exiled,"  etc.^ 

The  once  prevalent  view  of  this  chapter  w^s  that 
it  was  intended  to  be  a  ^aranty  of  trial  bv  -j]^rv 
and  due  process  of  hiw.  We  now  Tmnw  that  histor- 
ically this  view  was  incorrect,  that  the  guaranty  of 
"the  lawful  judgment  of  peers"  referred  only  to  a 
feudal  right,  to  which  trial  by  jury  was  utterly  hos- 
tile ;  ^  that  the  requirement  of  conformity  to  the  "law 

2  Chapter  29  stands  then  in  the  original  text  of  9  Hen.  Ill: 
"Nullus  liber  homo  capiatur  vel  imprisonetur  aut  disseisietur  de 
libera  tenemento  suo  vel  lihertatihus,  vel  liberis  consuetudinibus  suis, 
aut  utiagetur,  aut  exuletur,  aut  aliquo  modo  destruatur,-  nee  super 
eum  ibim^jg^nec  super  eum  mittemus,  nisi  per  legale  judicium  parium 
suorum,fveI /per  legem  terrae."  The  words  added  in  the  second  and 
third  charters  of  Henry  III  are  italicized. 

3  For  judicium  parium,  see  1  Stubbs'  Const.  Hist.  578,  and  note  1 ; 
1  Poll.  &  M.  Hist.,  2d  ed.,  173  and  note,  594;  Pike,  Const.  Hist. 
House  of  Lords,  169;  McKechnie,  Magna  Carta,  158,  438,  et  seq. 
"  For  a  legal  instrument  to  call  the  verdict  of  recognitors  a  judg- 
ment would  have  been  as  gross  a  blunder  in  1215  as  it  would  be  at 
the  present  time."     1  Poll.  &  M.  Hist.,  173,  note. 

For  the  identification  of  judicium  parium  with  jury  trial,  see 
Bagg's  Case  as  reported  1  Rolle's  Rep.  225  (where  it  is  said:  "En 
cest  case,  Bagg  nest  disfranchise  et  ouste  de  son  liberties  per  pares, 
hoc  est,  per  jurie,  nee  per  legem  terrae " )  ;  3  How.  St.  Tr.  152 
(quoted  below,  p.  15)  ;  4  Blackst.  Com.  349,  etc.  This  old  view,  so 
universally  repudiated  by  modern  scholars,  is  reiterated  in  the  opin- 
ions of  the  Supreme  Court  of  the  United  States  by  Harlan,  J.,  in 
Thompson  v.  Utah,  170  U.  S.  349,  and  in  Maxwell  v.  Dow,  176  U.  S. 
609.  The  true  view  was  given  long  before  by  Matthews,  J.,  in  Hur- 
tado  V.  California,  110  U.  S.  529.    Heal  judicium  parium  survived  as 


DUE  PROCESS  OF  LAW 


Chapter    of  the  land"  was  intended  as  a  guaranty  against 

certain  arbitrary  proceedings   on  the  part  of  the 

king,  the  enforcement  of  execution  without  any  judg- 
ment, or  after  a  mere  pretext  of  judgment ;  and  that 
the  most  that  was  guaranteed  was  judgment  by  some 
of  the  known  contemporary  methods  of  trial,  ordeal, 
battle,  or  compurgation.^  But  Magna  Carta  came 
in  after  ages  to  be  regarded  with  almost  supersti- 
tious reverence.  It  was  practically  taken  out  of  the 
category  of  statutes,  in  which  class  its  place  was 
technically  fixed  by  the  confirmatio  cartarum  of 
1297,  and  became  *'a  sacred  text,  the  nearest  ap- 
proach to  a  'fundamental  statute'  that  England  has 
ever  had."^  Such  a  document,  looked  to  by  each 
succeeding  generation  as  a  living  guaranty  of  rights, 
is  naturally  interpreted  in  each  age  according  to  the 
needs  of  the  time.  The  broad  construction  which 
was  given  to  the  39th  chapter  by  the  statesmen  and 
lawyers  of  the  seventeenth  century  during  the  con- 
stitutional struggles  with  the  Stuarts,  became  fixed 
in  the  commentaries  of  Coke  and  subsequent  writers, 

a  privilege  of  the  peers  alone.  2  Coke's  Inst.  48.  At  an  earlier  time 
it  included  all  classes,  except  villains,  even  Jews  and  burgesses.  1 
Poll  &  M.  Hist.,  2d  ed.,  173,  note;  McKechnie,  Mag.  Carta,  4.38,  448. 

4  For  per  legem  terrae,  see  Thayer,  Prelim.  Tr.  on  Evi.,  199,  201;  • 
McKechnie,  Magna  Carta,  442;  Pike,  Const.  Hist.  House  Lords,  170. 
Bigelow,  Hist.  Proc,  155,  note,  says:  "As  to  the  expression  per 
legem  terrae,  which  has  caused  so  much  discussion  in  the  law  books, 
and  generally  been  interpreted  by  the  courts  to  mean  that  defendants 
in  criminal  courts  must  be  tried  by  jury  upon  presentment  or  indict- 
ment, it  may  be  observed  that  jury  trial  in  criminal  cases  had  not 
come  into  use  at  this  tirne,  except  as  a  matter  of  special  grace  on 
the  part  of  the  king.  .  .  ,  The  expression  per  legem  terrae  sim- 
ply required  judicial  proceedings,  according  to  the  nature  of  the 
case,  the  duel,  ordeal,  or  compurgation  in  criminal  cases,  the  duel, 
witnesses,  charters,  or  recognition  in  property  cases." 

5  1  Poll.  &  M.  Hist.,  2d  ed.,  173. 


DUE  PROCESS  OF  LAW 


and  in  the  period  of  our  Revolutionary  War  was    Chapter 

woven  into  the  very  texture  of  American  constitu-  '■ — 

tional  law. 

The  materials  on  which  the  seventeenth  century 
lawyers  seized  for  their  interpretation  of  the  Char- 
ter take  us  back  to  the  thirteenth  century  contests 
between  the  King's  Council  and  Parliament. 

For  a  long  period  after  1215,  the  English  Consti-  be[wff!f^ 
tution  was  still  in  a  fluid  state,  while  governmental  fnd'^™^°* 
powers  and  machinery  were  slowly  evolving  toward  °"""  * 
the  familiar  type  of  later  times.  By  the  fourteenth 
century,  the  King's  Council,  whose  functions  were 
chiefly  executive  and  judicial,  had  become  separated 
from  Parliament.  But  the  powers  of  each  were  ill- 
defined,  and  the  Parliament  throughout  that  century 
was  continually  petitioning  against  the  vague  and  in- 
definite jurisdiction  of  the  Council.  With  the  acces- 
sion of  the  House  of  Lancaster  at  the  end  of  the 
fourteenth  century,  both  Parliament  and  the  Coun- 
cil passed  largely  under  the  control  of  the  leading 
nobles,  and  such  protests  became  less  common. 
Finally,  with  the  coming  of  the  Tudors,  the  loose  ju- 
risdiction of  the  Council  was  in  a  measure  defined 
and  vested  in  a  sort  of  committee,  which  became 
known  as  the  Court  of  Star  Chamber. ^  The  later 
history  of  the  Council  does  not  concern  us,  but  the 
petitions  of  the  fourteenth  century  Parliaments,  fSOO--^^^ 
which  sometimes  received  the  King's  assent  and  so 
became  laws,  were  seized  on  by  the  seventeenth  cen- 
tury lawyers  ns  internrptations  of  ^^Ipw  nf  the  land/ ' 
and  ^^ due  process  of  law."  "^ 

6  See  1  Steph.  Hist.  Crim.  Law,  c.  vi,  p.  166;  1  Holdsworth,  Hist. 
Eng.  Law,  c.  vi,  p.  264. 

7  This  series  of  statutes  and  petitions  is  quite  fully  given  in  the 


8 


DUE  PROCESS  OF  LAW 


Chapter 
I. 


Fourteenth 

century 

statutes. 


With  the  lapse  of  a  century  after  its  passage,  the 
39th  chapter  of  Magna  Carta  had  lost  the  mean- 
ing it  had  for  its  contemporaries.  The  King's  courts, 
administering  the  royal  justice,  had  become  the  re- 
positories and  guardians  of  the  "common  law;" 
their  methods  of  procedure  were  standards,  definite 
and  fixed;  and  the  people  saw  in  the  Charter  a  giiar- 
anty  of  those  verv  methods  which  the  barons  had 
infeiiided  to  curtail.  It  was  natural  then  that  in  the 
complaints  against  the  Council,  the  guaranty  m  this 
Charter  of  the  "law  of  the  land"  should  be  continu- 
ally invoked. 

These  complaints  were  founded  on  arbitrary  im- 
prisonments, deprivations  of  property,  or  inter- 
ference with  the  ordinary  administration  of  justice.* 
In  1331,  there  is  an  enactment  (Stat.  5  Edw.  Ill, 
c.  9)  that  "No  man  from  henceforth  shall  be  attached 
by  any  accusation  nor  forejudged  of  life  or  limb,  nor 
his  lands,  tenements,  goods,  nor  chattels  seized  into 
the  King^s  hands,  against  the  form  of  the  Great 
Charteriand  the  law  of  the  land. ' '    Again,  in  1350,  the 

speech  of  Sir  Edward  Littleton  before  the  House  of  Lords  in  the 
debates  which  followed  the  case  of  the  Five  Knights.  See  3  How.  St. 
Tr.  86-89,  122,  123.  See,  also,  2  Stubbs'  Const.  Hist.  637-639;  1 
Holdsworth's  Hist.  Eng.  Law,  267-269;  1  Steph.  Hist.  Crim.  Law, 
169  et  seq. 

8  The  petition  of  1368  recites :  "  that  many  of  your  commons  are 
hurt  and  destroyed  by  false  accusers,  who  make  their  accusations 
more  for  their  revenge  and  particular  gain  than  for  the  profit  of 
the  King,  or  of  his  people ;  and  those  that  are  accused  by  them,  soma 
are  taken  and  others  are  pade  to  come  before  the  King's  Council  by 
writ  or  other  commandment  of  the  King,  upon  grievous  pains,  con- 
trary to  the  law."  3  How  St.  Tr.  89,  122.  In  1363,  a  statute,  37 
Edw.  Ill,  c.  18,  declared  that  divers  people  make  false  suggestions  to 
the  King  himself,  as  well  for  malice  as  otherwise,  whereat  the  King  is 
often  grieved  and  divers  of  the  realm  put  in  damage,  against  the 
form  of  the  Great  Charter.     3  How.  St.  Tr.  88. 


DUE  PROCESS  OF  LAW 


Commons  petition  that  "No  freeman  be  put  to  an-    Chapter 


swer  for  his  freehold,  nor  for  anything  which  touches 
life  and  member,  fine  or  ransom  by  information  be- 
fore the  Council  of  our  lord  the  King,  nor  before 
any  of  his  ministers  save  by  process  of  law  used  in 
that  behalf  in  times  past."  The  King  grants  the  pe- 
tition and  promises  that  proceedings  shall  be  "by 
process  of  law ; ' '  but  adds  that  in  any  matter  which 
touches  life  or  limb,  contempt  or  excess,  things  shall 
be  as  has  been  customary.^  Statute  25  Edw.  Ill, 
c.  4  (A.  D.  1351),  recites  the  provisions  of  "the  Great 
Charter  of  the  franchises  of  England  that  no  free- 
man shall  be  imprisoned,  nor  put  out  of  his  freehold, 
nor  free  custom,  unless  it  be  by  the  law  of  the  land," 
and  enacts  that  "From  henceforth  none  shall  be 
taken  by  petition  or  suggestion  made  to  our  lord  the 
King  or  his  Council,  unless  it  be  by  presentment  or 
indictment  of  his  good  and  lawful  people  of  the  same 
neighborhood,  where  such  deeds  be  done,  in  due  man- 
ner, or  by  process  made  by  writ  original  at  the  com- 
mon law,  nor  that  none  be  ousted  of  hisi  franchises, 
nor  of  his  freehold,  unless  he  be  duly  brought  in  to 
answer  and  forejudged  of  the  same  by  the  course 
of  the  law."  1  Three  years  later,  it  is  enacted  (Stat. 
28  Edw.  Ill,  c.  3),  "That  no  man,  of  what  state  or 
condition  soever  he  be,  shall  be  put  out  of  his  lands, 
or  tenements,  nor  taken,  nor  imprisoned,  nor  indict- 
ed, nor  put  to  death,  without  he  be  brought  in  to  an- 
swer by  4u^-p=rocess  of  law."  In  1362,  in  a  petition, 
the  Commons  recited  the  existing  guaranties  as  fol- 

9  2  Rot.  Pari.  228.  See  also  1  Steph.  Hist.  Cr.  Law,  169;  I 
Holds.  Hist.  Eng.  Law,  268;  3  Reeves'  Hist.  Eng,  Law  (Am,  ed. 
1880),  159. 

1  Rot.  Pari.  36  Edw.  III.     See  3  How.  St.  Tr.  88,  122. 


I. 


10  DUE  PROCESS  OF  LAW 

Chapter  lows :  ''Whereas  it  is  contained  in  the  Great  Char- 
ter  and  other  statutes  that  no  man  be  taken  or  im- 
prisoned by  special  command  without  indictment  and 
other  process  to  be  made  by  the  law,"  etc.;  ^  but  the 
King  only  answered  that  he  is  pleased  "if  any  man 
find  himself  grieved,  that  he  come  and  make  his  com- 
plaint, and  right  shall  be  done  unto  him. ' '  A  statute 
of  the  next  year  (Stat.  37  Edw.  Ill,  c.  18)  recites 
the  charter  thus:  "Though  it  be  contained  in  the 
Great  Charter  that  no  man  be  taken  or  imprisoned, 
or  put  out  of  his  freehold  without  process  of  law."  ^ 
In  1368  the  House  of  Commons  prayed  that  no  man 
be  put  to  answer  without  presentment  before  jus- 
tices, or  a  matter  of  record,  or  by  due  process  and 
original  writ  according  to  the  ancient  law  of  the 
land.  The  King  granted  the  petition  "because  this 
article  is  an  article  of  the  Great  Charter." 

Thus,  in  the  statutes  and  petitions  of  the  Parlia- 
ments of  Edward  III  the  phrases  "process  of  law" 
or  "due  process  of  law"  have  come  to  be  used  as 
equivalent  to  "law  of  the  land"  in  the  Great  Char- 
ter, or  perhaps  for  the  whole  phrase  per  legale  ju- 
dicium parium  suorum  vel  per  legem  terrae^    In 

2  See  3  Reeves,  Hist.  Eng.  Law  (Am.  ed.  1880),  159.  Of  this 
statute  Sir  Edward  Coke  said:  "For  the  true  sense  and  exposition 
of  these  words  [by  the  law  of  the  land]  see  the  statute  37  Edw.  Ill, 
c.  8  [18],  where  the  words  'by  the  law  of  the  land'  are  rendered 
'  without  due  process  of  law.' "     2  Inst.  50, 

3  2  Rot.  Pari.  295,  42  Edw.  Ill ;  Stat.  42  Edw.  Ill,  c.  13.  See 
3  How.  St.  Tr.  89,  122. 

♦  This  is  in  agreement  with  the  suggestion  that  the  phrases  of 
Magna  Carta  express  one  sinplo  idea  and  not  two  district  ones.  "  In 
mediaeval  Latin,  vel  will  often  stand  for  and.  .  .  .  The  wording 
of  ithe  clause  leaves  open  the  question  wtiether  a  man  can  ever  be 
imprisoned  or  disseised  by  the  law  of  the  land  without  having  had 
the  judgment  of  his  peers."     1  Poll  &  M.  Hist.,  2d  ed.,  173.  note. 


DUE  PROCESS  OF  LAW  11 

the  earliest  instances  it  is  used  in  contradistinction  Chapter 

to  information,  or  includes  both  common-law  x^rocess  

and  indictment  or  presentment.     Its  wider  meaning 
is  apparent  in  the  later  instances. 

With  Edward's  reign  did  not  cease  the  acts  of  Sfve  — 

King  and  Council  against  which   Parliament  had  m'^nt'with- 

•  °"*  cause. 

struggled.^  The  parliamentary  protests  which  con- 
tinued into  the  fifteenth  century  throw  no  further 
immediate  light  on  "due  process  of  law,"  but  they 
are  of  interest  in  their  bearing  on  the  seventeenth 
century  constitutional  contests  which  finally  settled 
the  meaning  of  that  phrase.  In  1389  we  find  the 
King,  in  answer  to  a  remonstrance  of  the  Commons 
against  writs  quihusdam  certis  de  causis,  asserting 
his  prerogative,  ''as  his  progenitors  had  done  be- 
fore him,"  to  imprison  subjects  by  force  of  his  special 
mandate  merely.^  Ten  years  later,  a  petition  setting  13^*^ 
forth  that  cases  are  removed  before  the  Council  to  be 
tried  before  enemies  of  the  parties  and  praying  that 
the  practice  may  cease,  receives  the  royal  acquies- 
cence with  the  saving  clause  "unless  one  party  is  rich 
and  the  other  poor  so  that  justice  can  not  otherwise 
be  done."*^  In  those  rude  days  when  "the  good  old 
rule,  the  simple  plan"  prevailed,  the  rights  of  the 
poor  and  weak  against  the  rich  and  powerful  needed 
greater  powers  for  their  enforcement  than  the  ordi- 
nary courts  had  at  their  disposal,  and  after  the 
troubles  of  the  wars  between  the  Houses  of  Lancas- 

5  1  Holdsworth,  Hist.  Eng.  Law,  269 ;  2  Stubbs'  Const.  Hist.   638. 

«  1  Holdsworth,  Hist.  Eng.  Law,  269. 

7  1  Steph.  Hist.  Crim.  Law,  170.  See  also  the  petition  of  the 
Commons  and  the  answer  of  the  King,  through  his  council,  in  2  Rich. 
II,  in  Miss  Schofield's  Court  of  Star  Chamber,  xxvii  (University  of 
Chicago ) . 


12  DUE  PROCESS  OF  LAW 


Chapter    ter  and  York,  this  branch  of  the  Council's  jurisdic- 


tion was  exercised  by  Henry  VII 's  new  Court  of 
Star  Chamber  without  protest.  Nor  did  the  prerog- 
ative of  the  King,  exercised  through  his  council,  to 
imprison  on  special  mandate  only,  bring  forth  any 
general  protest,  as  it  was  used  by  the  wise  and  mas- 
terful Tudor  sovereigns,  who  knew  well  the  point  be- 
yond which  the  people  would  not  bear  interference 
with  their  rights, 
sfuarts  With  the  breach  between  the  Stuart  kings  and 

ment  — '^'   thc  Parliament  in  the  early  seventeenth  century,  the 

"Due  proc-  ...  .  , 

fnter^"^"^  Crowu's  prcrogativc  to  imprison  by  special  mandate 
preted.  becamc  of  vital  importance,  and  was  challenged  as 
not  in  accordance  with  the  law  of  the  land  or  due 
process  of  law.  Charles  I,  unable  to  obtain  from 
Parliament  the  supplies  needed  for  the  jDrosecution 
of  his  disastrous  Continental  wars,  resorted  to  the 
expedient  of  a  forced  loan.  Some  gentlemen,  the 
historic  ''five  knights,"  who  refused  pa}^nent  of  this 
illegal  exaction,  were  by  the  King's  command,  with- 
out further  cause  named  in  the  writ,  thrown  into 
prison.  The  judges,  upon  habeas  corpus  brought  to 
secure  their  release,  refused  to  interfere,^  basing 
their  action  particularly  on  a  precedent  of  Eliza- 
beth's reign,  when  such  an  imprisonment  had  been 
held  not  to  be  illegal.^  The  attitude  of  the  country, 
however,  was  very  different  when  this  prerogative 
was  asserted  in  an  isolated  case  by  a  strong  and 
respected  sovereign,  and  when  it  was  employed 
as  a  means  of  enforcing  a  system  of  irresponsible 
government  by  a  discredited  king.    These  events 

8  3  How.  St.  Tt.  151-159. 
"Resolution  of  Judges,  Anderson  297. 


DUE  PROCESS  OF  LAW  13 

produced  prolonged  debates  in  Parliament  "on  the    Chapter 

liberty  of  the  subject,"  in  which  the  whole  mat-  

ter  was  thoroughly  threshed  over  with  a  wealth  of 
learning.^  The  formation  of  the  Petition  of  Right 
in  the  Commons  under  the  leadership  of  Sir  Edward 
Coke  was  the  result,  and  that  great  constitutional 
document  became  a  statute  of  the  realm  by  the 
grudging  assent  of  the  King.^  This  instrument  re- 
cites various  guaranties  of  the  rights  of  the  subject 
and  acts  of  the  King  declared  to  be  in  violation  there- 
of, which  show  the  meaning  given  to  the  guaranties. 
Chapter  29  of  the  Magna  Carta  of  9  Hen.  Ill, 
and  Stat.  28  Edw.  Ill,  c.  3  (where  the  words 
"due  process  of  law"  are  used)  are  recited  and  de- 
clared to  be  violated  by  imprisonment  of  subjects 
"without  any  cause  showed,"  "but  that  they  were 
detained  by  your  Majesty's  special  command,  signi- 
fied by  the  lords  of  your  Privy  Council;"  Stat.  25 
Edw.  Ill,  c.  4,  is  given,  and  declared  to  be  infringed 
by  commissions  authorizing  trial  by  martial  law.^ 

1  See  3  How.  St.  Tr.  1-234. 

The  question  of  the  personal  rights  of  Englishmen  was  elaborately 
argued  in  conference  with  the  House  of  Lords  by  a  committee  of  the 
Commons  composed  of  most  eminent  lawyers.  The  committee  con- 
sisted of  the  ex-chief  justice  of  the  King's  Bench,  Sir  Edward  Coke; 
John  Selden,  the  celebrated  antiquary  and  profound  lawyer;  Edward 
Littleton  afterwards  Sir  Edward,  Chief  Justice  of  the  Common 
Pleas  and  Lord  Keeper;  and  Sir  Dudley  Digges.  The  committee 
divided  the  argument  among  +hemselves,  and  the  speeches  of  Little- 
ton and  Selden  are  particularly  valuable  for  an  historical  review 
of  the  statutes  and  casas.     3  How.  St.  Tr.  86-126. 

2  Stat.  3  Car.  I,  c.  1 ;  5  Stat.  Realm  23. 

3  Judge  Cooley,  Const.  Limit.,  6th  ed.,  429,  note,  gives  as  a  textual 
quotation  from  the  body  of  the  petition  a  sentence  wherein  the  phrase 
"  due  process  of  law  "  is  used.  This  is  not  found  in  the  petition  aa 
printed  in  the  Statutes  of  the  Realm.  Mr.  Guthrie  follows  him. 
Guthrie,  Fourteenth  Amendment,  69. 


14 


DUE  PROCESS  OF  LAW 


Interpreta 
tion  em- 
bodied in 
Coke's 
Second 
Institute. 


Chapter    rpj^^  construction  thus  put  upon  these  acts  is  con- 

firmed  for  the  future  by  the  King's  assent  to  the 

prayer  "that  no  freeman,  in  any  such  manner  as 
is  before  mentioned,  be  imprisoned  or  detained,'* 
.  .  .  and  that  the  aforesaid  commissions,  for  pro- 
ceeding by  martial  law,  may  be  revoked  and  an- 
nulled; and  that  hereafter  no  commissions  of  like 
nature  may  issue  forth  to  any  person  or  persons 
whatsoever  to  be  executed  as  aforesaid,  lest  by 
colour  of  them  any  of  your  Majesty's  subjects  be 
destroyed  or  jDut  to  death  contrary  to  the  laws  and 
franchises  of  the  realm." 

The  reasoning  of  the  English  statesmen  of  the 
seventeenth  century  about  the  use  of  the  term  ' '  due 
process  of  law,"  is  contained  in  the  hearing  on  ha- 
beas corpus  of  the  Case  of  the  Five  Knights,  and  in 
the  debates  on  the  Petition  of  Right.    In  all  the 

4  "  And  whereas  also  by  authority  of  Parliament  in  the  five-and- 
twentieth  year  of  King  Edward  III,  it  is  declared  and  enacted,  that 
no  man  shall  be  forejudged  of  life  or  limb  against  the  form  of  the 
Great  Charter  and  the  law  of  the  land;  and  by  the  said  Great  Char- 
ter and  other  the  laws  and  statutes  of  this  your  realm,  no  man 
ought  to  be  adjudged  to  death  but  by  the  laws  established  in  this 
your  realm,  either  by  the  customs  of  the  said  realm  or  by  Acts  of 
Parliament;  and  whereas  no  offender  of  what  kind  soever  is  exempted 
from  the  proceedings  to  be  used  and  punishments  to  be  inflicted  by 
the  laws  and  statutes  of  this  your  realm ;  nevertheless  of  late  divers 
commissions  under  your  Majesty's  Great  Seal  have  issued  forth,  by 
which  certain  persons  have  been  assigned  and  appointed  commis- 
sioners with  power  and  authority  to  proceed  within  the  land,  accord- 
ing to  the  justice  of  martial  law,  against  such  soldiers  and  mariners, 
or  other  dissolute  persons  joining  with  them,  as  should  commit  any 
murder,  robbery,  felony,  mutiny,  or  other  outrage  or  misdemeanour 
whatsoever,  and  by  such  summary  course  and  order  as  is  agreeable 
to  martial  law,  and  is  used  in  armies  in  time  of  war,  to  proceed 
to  the  trial  and  condemnation  of  such  offenders,  and  them  to  cause 
to  be  executed  and  put  to  death  according  to  the  law  martial." 
Petition  of  Right,  7.  See  McKechnie,  Magna  Carta,  442:  The  Story 
of  Habeas  Corpus,  by  Edward  Jenks,  18  L.  Quart.  Rev.  75. 


DUE  PROCESS  OF  LAW  15 

proceeding    to    curb    the    irresponsible    doings    of    Chapter 

Charles,  Sir  Edward  Coke  took  a  leading  part,  and  

the  often-quoted  passage  of  his  Second  Institute, 
subsequently  published,  commenting  on  per  legem 
terrae,  is  but  an  abstract  of  the,  views  expressed  by 
himself  and  his  associates  during  that  struggle  and 
reflected  in  the  Petition  of  Right.  Coke  says  that  by 
''the  law  of  the  land"  is  meant  "the  common  law, 
statute  law,  or  custom  of  England, ' '  ^  and  in  an- 
other place  he  adopts  the  words  of  the  statutes  of 
1362  and  1350:  "For  the  true  sense  and  exposition 
of  these  words  [per  legem  terrae],  see  the  statute 
37  Edw.  Ill,  c.  8  [18],  where  the  words  'by  the 
law  of  the  land'  are  rendered  'without  due  process 
of  law,'  for  there  it  is  said,  though  it  be  contained 
in  the  Great  Charter,  that  no  man  be  taken,  impris- 
oned, or  put  out  of  his  freehold  without  process  of 
law ;  that  is  [and  he  takes  the  explanation  from  Stat. 
25  Edw.  Ill,  c.  4]  by  indictment  or  presentment  of 
good  and  lawful  men  where  such  deeds  be  done,  or 
by  writ  original  of  the  common  law."®  In  the  de- 
bate in  Parliament  on  the  Petition  of  Right,  to  an 
argument  of  the  attorney  general  "that  per  legem 
terrae  in  Magna  Carta  (which  is  the  foundation  of 
this  question)  can  not  be  understood  for  process  of 
law  and  original  writs ;  for  that  in  all  criminal  pro- 
ceedings no  original  writs  are  used  at  all,"  and  that 
' '  the  statute  cited  by  the  Commons  makes  process  of 
law  and  writ  original  all  one,"  the  Managers  for  the 
Commons  reply  "that  they  do  not  intend  original 
writs  only  by  law  of  the  land,  but  all  other  legal 

B2  Inst.  46. 
8  2  Inst.  50. 


16 


DUE  PROCESS  OF  LAW 


Other  con 

ceptions 
gravitate 
to  "due 
process." 


Chapter    process,  wliicli  comprehends  the  whole  proceedings  of 

law  upon  cause,  other  than  trial  by  jury,  judicium 

parium,  unto  which  it  is  opposed."  Then  follows 
an  examination  of  the  old  statutes,  and  the  conclu- 
sion is  that  the  expressions  in  all  of  them  ''import 
any  due  and  regular  proceedings  of  law  upon  a  cause, 
other  than  the  trial  by  jury. ' '  ^ 

The  equivalence  of  the  two  phrases  ''law  of  the 
land"  and  "due  process  of  law,"  assumed  by  Coke 
and  his  associates  from  the  old  statutes  of  the  four- 
teenth century,  has  been  universally  stated  upon  his 
authority  by  American  courts,  and  has  become  an 
established  rule  of  interpretation.^ 

While  the  constitutional  conception  of  "law  of 
the  land"  and  "due  process"  was  thus  being  built 
up,  it  was  to  a  greater  or  less  extent  assimilating 
certain  other  fundamental  ideas  whose  origin  was 
widely  different.  Prominent  among  them  was  that 
of\notice  and  hearing  before  condemnation,  which 
was  said  by  the  mediaeval  chancellors  to  be  required 
by  "the  law  of  nature,"  and  has  frequently  siuce 
been  based  on  the  equivalent  conceptions  of  the  law 
of  God  or  natural  justice  or  reason.^  As  early  as 
the  fourteenth  century  the  idea  was  advanced, 
though  only  by  the  victims,  that  a  bill  of  attainder 
without  any  opportunity  for  hearing  granted  to  the 
person  attainted  was  not  in  accordance  with  the  law 

'  3  How.  St.  Tr.  152. 

8  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  (U.  S.)  272; 
Davidson  v.  Xew  Orleans,  96  U.  S.  97;  Greene  r.  Briggs,  1  Curt. 
(U.  S.)  311;  Normal  School  Dist.  v.  Blodgett,  15.5  111.  441.  See  the 
numerous  additional  citations  in  10  Am.  and  Eng.  Eneyc.  of  Law 
(2d  ed.)  290. 

0  See  infra,  p.  73. 


DUE  PROCESS  OF  LAW  17 

of  the  land  or  due  process  of  law.^     And  in  1616,  it    Chapter 

was  held  that  proceedings  on  the  part  of  a  munici-  '■ — 

pality  which  deprived  a  freeman  of  the  freedom  of 
the  city  without  hearing  was  open  to  this  objection.^ 
In  all  these  instances  the  wider  generalization  is 
gradually  emerging  that  all  purely  arbitrary  pro- 
ceedings whereby  one  is  de^Drived  of  personal  rights 
are  contrary  to  the  law  of  the  land  or  due  process. 

At  this  stage  of  its  growth  the  conception  was  ^"^Am'e"?- 
adopted  during  the  formative  period  of  our  history  tuL'^ns"'"" 
into  the  Constitution  of  the  United  States  and  into 
the  constitutions  of  the  several  States,  where  it  has 
had  a  vigorous  development,  and  the  courts  have 
from  time  to  time  added  essential  characteristics 
which  they  have  held  to  be  implied  in  the  concep- 
tion itself. 

'^Due  Process'*  in  the  Federal  Constitution. 

In  the  Fifth  Amendment. 

In  the  Federal  Constitution  the  words  **due  pro-  S^piffh^" 
cess  of  law"  occur  in  but  two  places.  The  first  is  in  mSu"*^" 
the  Fifth  Amendment  to  the  Constitution,  one  clause 
of  which  provides  that  no  person  shall  ''be  deprived 
of  life,  liberty  or  property  without  due  process  of 
law. ' '  The  other  provisions  of  this  amendment  guar- 
antee trial  by  jury  in  cases  of  capital  or  infamous 
crime,  and  forbid  double  jeopardy,  compelling  a  per- 
son to  be  a  witness  against  himself,/or  the  taking  of 
private  property  for  public  use  without  just  com- 
pensation. /   ,  ; 

The  first  ten  amendments  to  the  Federal  Constitu- 

1  See  infra,  p.  65. 

sBagg's  Case,  11  Coke  99a.     See  infra,  p.  74. 
2 


18 


DUE  PROCESS  OF  LAW 


Chapter 
1. 


Adoption 
of  first  ten 
amend- 


Scope  of 
first  ten 
amend- 
ments. 


tion  were  a  concession  to  the  fears  of  a  generation 
which  had  taken  part  in  the  Revolution.  The  strug- 
gle with  England  for  rights,  held  to  be  the  sacred 
inheritance  of  all  free  English  subjects,  had  left  the 
States  and  the  people  of  the  country  keenly  alive  to 
the  value  of  liberty  and  profoundly  jealous  and  dis- 
trustful of  centralized  power.  The  feeling  was  wide- 
spread that  under  the  Constitution  as  proposed  the 
States  were  weakened  and  a  place  left  for  encroach- 
ments which  might  in  time  end  in  their  absorption 
into  the  Federal  Government.  Under  these  circum- 
stances ratification  of  the  Constitution  by  the  requi- 
site number  of  States  was  secured  only  by  an 
understanding  that  amendments  would  be  adopted 
declaring  the  rights  of  the  people  and  restricting  the 
powers  of  the  general  government.  In  pursuance  of 
this  understanding  a  proposition  to  amend  the  Con- 
stitution was  brought  forward  by  Mr.  Madison  in 
the  First  Congress,  and  the  first  ten  amendments 
were  framed,  and  ratified  by  the  requisite  number  of 
States  in  December,  1791.^ 

These  amendments  do  not  affect  the  powers  of 
the  States  in  respect  to  their  own  people,  but  limit 
the  powers  of  the  general  government  alone.^  *'The 
Constitution,"  said  Chief  Justice  Marshall  in  1833, 
*'was  ordained  and  established  by  the  people  of  the 
United  States  for  themselves,  for  their  own  govern- 

3  See,  for  a  sketch  of  the  events  leading  to  the  adoption  of  the 
first  ten  amendments,  Jackson  v.  Wood,  2  Cow.  (N.  Y. )  819,  note; 
O'Neil  V.  Vermont,  144  U.  S.  .323,  per  Field,  J.,  dissenting,  at  p.  361. 

*  Spies  V.  Illinois,  123  U.  S.  131,  166  (1887).  Perhaps  the  ear- 
liest adjudication  to  this  effect  was  in  1824  in  a  nisi  prius  decision 
of  the  New  York  Supreme  Court  by  Judge  W^alworth,  afterwards 
the  Chancellor  of  the  State.  Jackson  v.  Wood,  2  Cow.  (N.  Y.)  819, 
note. 


DUE  PROCESS  OF  LAW  19 

ment,  and  not  for  the  government  of  the  individual    ciiapter 

States.    Each  State  established  a  constitution  for  

itself,  and  in  that  constitution  provided  such  limita- 
tions and  restrictions  on  the  powers  of  its  particular 
government  as  its  judgment  dictated.  The  people  of 
the  United  States  framed  such  a  government  for  the 
United  States  as  they  supposed  best  adapted  to  their 
situation  and  best  calculated  to  promote  their  inter- 
ests. The  powers  they  conferred  upon  this  govern- 
ment were  to  be  exercised  by  itself;  and  the  limita- 
tions on  power,  if  expressed  in  general  terms,  are 
naturally,  and,  we  think,  necessarily  applicable  to  the 
government  created  by  this  instrument.  They  are 
limitations  of  power  granted  in  the  instrument  it- 
self; not  of  distinct  governments  framed  by  differ- 
ent persons  and  for  different  purposes."^ 

This  construction  governs,  of  course,  the  applica- 
tion of  the  Fifth  Amendment,  and  the  provision  for 
''due  process"  which  it  contains.^ 

In  the  Fourteenth  Amendment. 

In  very  different  circumstances  of  our  national  p^^u'^r^te^th 
life,  was  adopted  as  a  part  of  the  Federal  Constitu-  m"n?ii" 
tion  the  Fourteenth  Amendment,  in  which  the  phrase  tioSf 
"due  process  of  law"  occurs  again.     This  amend- 
ment belongs  to  the  group,  the  Thirteenth,  Four- 
teenth, and  Fifteenth  Amendments,  by  which  the  re- 
sults of  the  struggle  of  the  Civil  War  were  secured 
and     rendered     permanent.     By     the     Thirteenth 
Amendment,  which  declares  that  "neither  slavery 

5  Barron  v.  Baltimore,  7  Pet.   (U.  S.)  243,  247. 

«Munn  V.  Illinois,  94  U.  S.  123;  Kelly  v.  Pittsburgh,  104  U.  S. 
78;  Hallinger  V.  Davis,  146  U.  S.  319;  Fallbrook  Irrigation  Dist.  v. 
Bradley,  164  U.  S.   112. 


20 


DUE  PROCESS  OF  LAW 


Chapter  nor  involuntary  servitude,  except  as  a  punishment 
'■ —  for  crime  where  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  in 
any  place  within  its  jurisdiction,"  the  freedom  of 
the  negro  race  was  assured,  but  their  rights  were 
still  at  the  mercy  of  State  legislation.  Some  of  the 
former  slave  States  passed  laws  especially  directed 
against  the  negro  race,  and  imposing  various  disa- 
bilities on  former  slaves.  In  some  instances  they 
were  denied  the  right  to  appear  in  the  towns,  except 
in  the  capacity  of  menial  servants.  They  were  de- 
nied the  right  to  purchase  land.  They  were  not  per- 
mitted to  testify  in  cases  where  a  white  man  was  a 
partyJ  It  was  felt  that  national  protection  was  nec- 
essary for  the  f reedmen,  and^the  Fourteenth  Amend- 
ment was  proposed  to  the  States,  and  declared  rati- 
j&ed  in  July,  1868.  Its  first  section  is  as  follows: 
*'A11  persons  bom  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  nor  shall  any  State 
deprive  any  person  of  life,  liberty  or  property  with- 
1  out  due  process  of  law ;  nor  deny  to  any  person  with- 
in its  jurisdiction  the  equal  protection  of  the  laws.'f/ 
Thus  it  will  be  seen  that  the  Fourteenth  Amend- 
ment was  broader  in  its  scope  than  the  wrongs  by 
which  it  was  occasioned.  ''It  had  its  origin  in  a 
purpose  to  secure  the  newly  made  citizens  in  the  full 


Extends  to 
all  classes. 


t,.^7  SlaiifThter-House  Cases,  16  Wall.  (U.  S.)  36,  the  court  by  Miller, 
J.  See  also  Wilson,  Hist.  Am.  People,  vol.  5,  p.  18  et  seq.;  Rhodes, 
Hist,  U.  S.  from  Compromise  of  1850,  vol.  5,  p.  18. 


DUE  PROCESS  OF  LAW  21 


enjoyment   of   their   freedom,"    said   Mr.    Justice    Chapter 


Field,  ^^but  jt  is  in  no  respect  limited  in  its  operation 
to  them^  It  is  universal  in  its  application,  extend-/  c^^ 
ing  its  protective  force  over  all  men,  of  every  raceV  V^Yt^  J,  /  •^ 
and  color,  within  the  jurisdiction  of  the   States,  )  T\ 

throughout  the  broad  domain  of  the  Republic."^  '^^ 

"All  history,"  continued  the  learned  justice,  "shows 
that  a  particular  grievance  suffered  by  an  individual 
or  a  class,  from  an  oppressive  or  defective  law,  or 
the  absence  of  any  law  touching  the  matter,  is  often 
the  occasion  of  and  cause  for  enactmelits,  constitu- 
tional or  legislative,  general  in  their  character,  de- 
signed to  cover  cases  not  merely  of  the  same,  but  all 
cases  of  a  similar  nature. ,,  The  wrongs  which  were 
supposed  to  be  inflicted  upon  or  threatened  to  citi- 
zens of  the  enfranchised  race,  by  special  legislation 
directed  against  them,  moved  the  framers  of  the 
amendment  to  place  in  the  fundamental  law  of  the 
nation  provisions  not  merely  for  the  security  of  those 
citizens,  but  to  insure  to  all  men  at  all  times  and  in 
all  places  due  process  of  law  and  the  equal  protec- 
tion of  the  laws.  Oppression  of  the  person  and 
spoliation  of  property  by  any  State  were  thus  for- 
bidden, and  equality  before  the  law  was  secured  to 
all."  S^  — ^ 

That  "due  process  of  law"  under  this  amend-  ' 

ment  is  a  right  of  all  classes  of  persons  is  now  the 
veriest  commonplace,  but  in  the  Slaughter-House 
Cases,  in  1872,  the  first  instance  in  which  this  amend- 
ment came  before  the  Supreme  Court,  the  majority 
of  the  court  seemed  inclined  to  give  it  a  much  nar- 

8  Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  18  Fed.  Rep.  385, 
399   (1883). 


22  DUE  PROCESS  OF  LAW 

<?hapter    rower  operation.     In  that  case,  Mr.  Justice  Miller, 

for  the  court,  after  alluding  to  the  origin  of  the 

amendment,  observed:  ^'We  doubt  very  much 
whether  any  action  of  a  State  not  directed  by  way  of 
discrimination  against  the  negroes  as  a  class  or  on 
account  of  their  race,  will  ever  be  held  to  come  with- 
in the  purview  of  this  provision.  It  is  so  clearly  a 
provision  for  that  race  and  that  emergency  that  a 
strong  case  would  be  necessary  for  its  application 
to  any  other.  "^  The  course  of  events  has  contra- 
dicted this  forecast,  and  the  same  court  could  say  in 
1898  that  the  majority  of  cases  which  had  arisen 
under  this  amendment  turned  not  upon  a  denial  to 
the  colored  race  of  rights  therein  secured  to  them 
but  upon  alleged  discriminations  in  matters  entirely 
outside  of_the  political  relations  of  the  parties  ag- 
grieved.^(     .^  .    .  , 

Transac-   (y//  The  provlsiou  for  due  process  of  law  in  the  Four- 
fore  July,  ^  teenth  Amendment  applies  to  all  deprivations  of  life, 
(liberty,  or  property  since  its  passage,  and  it  has  been 


1868. 


I 


»  Slaughter-House  Cases,  16  Wall.    (U.  S.)   36,  81. 

In  Maxwell  v.  Dow,  176  U.  S.  581,  591,  the  court,  speaking  by- 
Mr.  Justice  Peckham,  adverted  to  this  expression  as  an  individual 
dictum,  and  said :  "  The  opinion  upon  the  matters  actually  involved 
in  the  case  has  never  been  doubted  or  overruled  by  any  judgment  of 
this  court.  It  remains  one  o'f  the  leading  cases  upon  the  subject 
of  that  portion  of  the  Fourteenth  Amendment  of  which  it  treats." 

1  Holden  v.  Hardy,  169  U.  S.  366,  382. 

The  journal  of  the  committee  which  framed  the  amendment;  the 
full  argument  of  Senator  Roscoe  Conkling,  who  was  a  member  of 
the  committee,  in  San  Mateo  County  v.  Southern  Pac.  R.  Co.,  ar- 
gued Dec.  19,  1882,  before  the  Supreme  Court,  but  in  view  of  a 
settlement  never  decided  by  that  tribunal  (see  116  U.  S.  138)  ;  and 
the  debates  in  Congress  upon  the  amendment,  show  conclusively  that, 
as  the  words  of  the  clause  indicate,  its  benefits  were  never  intended, 
by  its  framers  at  least,  to  be  limited  to  the  negro  race.  See  Guthrie, 
Fourteenth  Amendment,  22,  25,  and  the  quotations  there  given. 


DUE  PROCESS  OF  LAW  23 

held  to  j)robibit  a  taking  of  property  without  due    Chapter 

process  by  proceedings  under  a  statute  enacted  be-  -*; • 

fore  the  passage  of  the  amendment.  In  the  case  so  \ 
holding,  a  dam  and  embankment  had  been  erected  \ 
before  the  date  of  the  amendment,  which  were 
claimed  to  injure  the  riparian  rights  of  an  adjoining 
landowner.  It  was  held  that  the  maintenance  of 
the  dam  might  be  viewed  as  a  continuous  trespass, 
but,  if  not,  that  building  a  new  dam  which  raised  the 
head  of  water  after  the  amendment,  gave  the  ripa- 
rian owner  a  right  to  claim  the  protection  of  due 
process.^ 

Equivalent  Phrases  in  State  Constitutions. 

The  provisions  of  the  Fourteenth  Amendment  in 
restraint  of  deprivation  by  the  States  of  due  process 
of  law  form  simply  an  additional  guaranty  in  the 
name  of  the  national  government  of  rights  already 
guaranteed  by  the  several  States.^  The  constitu- 
tion of  nearly  every  State  in  the  Union  ^  contains  an 

2Kaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  142 
U.  S.  254. 

3  S-ae  infra,  p.  35. 

4  The  Ordinance  of  1787  for  the  government  of  the  Northwest 
Territory  provides  the  protection  of  the  law  of  the  land  for  "  liberty 
and  property"  only.  See.  14,  Art.  2.  The  constitution  of  Vermont 
extends  the  same  protection  only  to  "  liberty."  New  Jersey  merely 
declares  that  the  privilege  of  "  possessing  and  protecting  property  " 
shall  be  inalienable,  but  this  clause  has  been  understood  as  securing 
to  property  the  law  of  the  land.  Maxwell  v.  Goetschius,  40  N.  J.  L. 
391,  39  Am.  Rep.  242.  In  view  of  other  provisions  of  various  con- 
stitutions, such  as  the  guaranty  of  certain  remedies  for  wrong  and 
injustice,  either  without  delay,  or  by  due  course  of  law,  it  by  no 
means  follows,  even  when  the  article  providing  due  process  is  incom- 
plete or  is  omitted  altogether,  that  protection  for  life,  liberty,  and 
property  is  wanting.  See  Durkee  v.  Janesville,  28  Wis.  464,  9  Am. 
Rep.  500. 


24  DUE  PROCESS  OF  LAW 


Chapter    equivalent  provision.     The  form  of  the  provision  is 
'■ —  sometimes  a  translation  in  substance  of  the  famous 


clause  of  Magna  Carta,  and  guarantees  the  ''law 
of  the  land;"  sometimes,  as  in  the  Federal  Constitu- 
tion, "due  process  of  law"  is  secured;  and  some 
States  use  the  expression, ' '  due  course  of  law. ' '  But 
j       all  these  phrases  are,  in  substance,  identical.^ 

SCOPE    OF    THE    GUARANTY    IN    ENGLISH    AND    AMERICAN 

LAW. 

The  All  the  great  English  guaranties  of  private  rights 

guaranty      -^vere  callcd  forth  in  resistance  to  the  tvrannv  and  op- 

no  bar  on  »  .,  j. 

Parliament  p^essiou  of  the  Crowu.*^  lu  thcorj  at  least,  the  sub- 
ject's person  and  property  were  under  the  protec- 
tion of  the  law  of  the  land  and  judicium  parium,  as 
against  the  acts  of  the  King  himself  or  others  exer- 
cising authority  from  him,  as  by  his  letters  patent.^ 
The  right  to  the  judgment  of  peers  as  originally 

5  Mason  v.  Messenger,  17  Iowa  2(51;  Gilchrist  Schmidling,  12 
Kan.  263 ;  Diirkee  r.  Janesville,  28  Wis.  464. 

6  In  later  times  the  curtailment  of  royal  powers  is  associated 
■with  the  maxim  that  the  king  can  do  no  wrong.  Chief  Justice 
Markham  is  said  to  have  told  Edward  IV  \  that  he  could  not  arrest 
a  man  upon  suspicion  of  felony,  as  any  of  his  subjects  might,  be- 
cause if  he  should  wrong  a  man  by  such  arrest  the  injured  person 
could  have  no  remcdy.V.S  How.  St.  Tr.  15.  See  Pollock,  Essays  in 
Jurisprudence,  214.  Of  the  proceedings  on  the  deposition  of  Ed- 
ward II,  Mr.  L.  O.  Pike  says  —  as  might  well  be  said  in  other  early- 
cases:  "  In  those  rude  times  men  had,  of  course,  not  arrived  at  that 
refinement  of  doctrine  according  to  which  only  the  sovereign's  ad- 
visers are  responsible  for  the  misgovernment  of  the  sovereign." 
1  Hist.  Cr.  in  Eng.  226. 

7  King  Henry  VI  granted  to  the  corporation  of  dyers  in  London 
power  to  search,  and  if  they  found  any  cloth  dyed  with  logwood, 
that  the  cloth  should  be  forfeit;  and  it  was  adjudged  that  this  char- 
ter concerning  the  forfeiture  was  against  the  law  of  the  land ;  for 
no  forfeiture  can  grow  by  letters  patent.  2  Inst.  47,  stated  in  Lon- 
don's Case,  8  Coke   125c.. 


DUE  PROCESS  OF  LAW  25 

understood  was  retained  by  the  lords  alone,  and,    Chapter 

even  in  the  case  of  a  lord,  a  trial  by  his  peers  could  '■ — 

be  demanded  only  when  the  suit  was  at  the  instance 
of  the  King,  as  by  an  indictment,  and  an  appeal  (the 
old  private  suit  for  murder  or  felony)  was  to  be 
tried  as  in  the  case  of  any  common  person.^  With 
regard  to  the  guaranty  of  the  law  of  the  land,  its 
protection  was  held  to  be  effective  also  against  un- 
just and  arbitrary  action  on  the  part  of  municipal 
corporations,  which,  says  Lord  Coke,  ''derive  their 
authority  from  the  King."  ^  Thus,  in  Bagg's  Case  ^ 
it  was  held  that  no  freeman  of  any  city  or  borough 
can  be  disfranchised  from  the  corporation  if  it  has 
not  authority  so  to  do  either  by  express  words  of 
charter  or  prescription,  and  in  the  absence  of  such 
authority,  he  ought,  according  to  Magna  Carta,  to  be 
convicted  by  course  of  law  before  removal.  Lord 
Coke  also  illustrates  per  legem  terrae  by  a  case 
wherein  a  custom  in  a  city  was  adjudged  void  because 
''against  the  law  of  the  land."^  But  under  the 
English  system  of  parliamentary  sovereignty  ^  these 

8  Y.  B.  10  Edw.  IV,  fol.  6,  pi.  17;  2  Inst.  48;  Hurtado  v.  Califor- 
nia, 110  U.  S.  516. 

See  as  to  judicium  parium,  supra,  p.  5.  For  appeal  in  the  old 
technical  sense  of  a  formal  accusation  of  treason  or  felony,  brought 
by  one  subject  against  another  and  usually  ending  in  trial  by  com- 
bat, see  4  Bl.  Com.  312;  McKechnie,  Magna  Carta,  418;  and  the 
curious  case  of  Ashford  v.  Thornton,  1  B.  &  Aid.  405,  the  last  ap- 
pearance in  English  history  of  this  survival  of  a  primitive  state  of 
society.  The  abolition  of  appeals  followed  immediately  in  1819  by 
Stat.  59  Geo.  III.,  c.  46. 

8  Bagg's  Case,  11  Coke  100. 

1  11  Coke  99a. 

2  2  Inst.  46.  So  Coke,  referring  to  Y.  B.  43  Edw.  Ill,  Mich., 
fol.  32,  pi.  30,  which,  however,  says  merely  that  because  the  custom 
was  alleged  in  this  city  only  and  not  elsewhere  it  was  adjudged  void. 

3  Coke,  4  Inst.  36;  1  Bl.  Com.  160;  Dicey,  Law  of  Const.  39. 


26 


DUE  PROCESS  OF  LAW 


Chapter 
I. 


American 
guaranty- 
restrains 
all  govern- 
mental 
activity. 


guaranties  could  impose  no  restraint  on  Parlia- 
ment,'^ and  consequently  bills  of  attainder  and  other 
acts  for  punishment  without  trial  are  within  the  legal 
competence  of  the  law-making  power. 

We  are  thus  brought  face  to  face  with  a  funda- 
mental distinction  between  the  English  guaranty  of 
the  law  of  the  land  and  the  clauses  of  a  similar  pur- 
port in  American  constitutions.  While  the  English 
provision  exists  s^l^lv  p,o-aiTiRf  pvpcntive  flc^jop.  un- 
der our  system  of  paramount  written  constitutions,  to 
which  all  departments  of  the  government  are  equally 
subject,  the  provision  extends  alike  to  the  executive, 
judicial,  and  legislative  activities  of  the  States  and 
the  nation.^  With  regard  to  the  States,  the  question 
is  placed  beyond  doubt  by  the  words  of  the  Four- 
teenth Amendment:  ''Nor  shall  any  State  deprive 
any  person  of  life,  liberty  or  property  without  due 
process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws."  The 
Supreme  Court  of  the  United  States,  in  a  case  in 


x^ 


A 


\^ 


4  In  Bonham's  Case,  8  Coke  118a,  Coke  has  these  words:  "And 
it  appears  in  our  books,  that  in  many  cases,  the  common  law  will 
control  acts  of  Parliament  and  sometimes  adjudge  them  to  be  utterly 
void;  for  when  an  act  of  Parliament  is  against  common  right  and 
reason,  or  repugnant  or  impossible  to  be  performed,  the  common 
J  ^  ,law  will  control  it  and  adjudge  such  act  to  be  void."  See  also  Day 
V.  Savadge,  Hob.  87.  Prof.  Thayer  (1  Cas.  Const.  Law,  48,  note), 
after  a  thorough  examination  of  the  passage  in  Coke,  concludes 
that  he  only  intended  to  announce  the  rule  of  construction  that  Acts 
of  Parliament  are  to  be  construed  according  to  common  law  and 
natural  right,  to  the  extent  of  giving  a  forced  construction,  if  neces- 
sary. At  any  rate,  such  a  statement  as  Coke's,  if  it  bears  the  inter- 
pretation commonly  given  to  it  (1  Bl.  Com.  91;  1  Kent  Com.  448), 
is  but  a  closet  speculation,  never  put  in  practice.  Dicey,  Law  of 
Const.  58  et  seq. 

6  Chicago,  etc.,  E.  Co.  v.  Chicago,  166  U.  S.  226,  23.3-240.  And 
see  Murray  v.  Hoboken  Land,  etc.,  Co.,   18  How.    (U.  S. )    272-276. 


DUE  PROCESS  OF  LAW  27 

which  the  enjoyment  of  the  equal  protection  of  the    Chapter 

laws  was  the  direct  issue,  used  the  following  reason-  '■ — 

ing  equally  applicable  to  due  process:  "They  [the 
words  quoted]  have  reference  to  the  actions  of  the 
political  body  denominated  a  State,  by  whatever  in- 
struments or  in  whatever  modes  that  action  may  be 
taken.  A  State  acts  by  its  legislative,  its  executive 
or  its  judicial  authorities.  It  can  act  in  no  other 
way.  The  constitutional  provision,  therefore,  must 
mean  that  no  agency  of  the  State,  or  of  the  officers 
or  agents  by  whom  its  powers  are  exerted,  shall 
deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws.  Whoever,  by  virtue  of  pub- 
lic positions  under  a  State  government,  deprives  an- 
other of  property,  life  or  liberty  without  due  process 
of  law,  or  denies  or  takes  away  the  equal  protection 
of  the  laws,  violates  the  constitutional  inhibition; 
and  as  he  acts  in  the  name  of  and  for  the  State,  and 
is  clothed  with  the  State's  power,  his  act  is  that  of 
the  State.  This  must  be  so  or  the  constitutional  in- 
hibition has  no  meaning.  Then  the  State  has  clothed 
one  of  its  agents  with  power  to  annul  or  to  evade 
it."^  In  this  case  the  decision  was  that  the  act, 
whether  judicial  or  ministerial,  of  a  judge  in  his 
official  capacity  was  within  the  prohibition  of  the 
amendment. 

The  Fourteenth  Amendment  has  been  held  like-  ^J^Jfj^f  ^ 
wise  to  render  void  the  judgment  of  a  probate  court  ^''*'°"' 
determining  that  a  person  absent  for  seven  years 
was  dead  and  granting  letters  of  administration  on 
his  estate,  when  in  fact  he  was  alive,  although  the 

^Ex  p.  Virginia,  100  U.  S.  339.     See  also  Hovey  v.  Elliott,  167 
U.  S.  409. 


28 


DUE  PROCESS  OF  LAW 


Chapter 
I. 


—  and  ad- 
ministra- 
tive action. 


The  legis- 
lative 
power  re- 
strained. 


judgment  bad  been  confirmed  by  tbe  bigbest  court  of 
tbe  State ;  '^  and,  as  was  observed  in  a  later  case,  a 
State's  "judicial  autborities  may  keep  witbin  tbe 
letter  of  tbe  statute  prescribing  forms  of  procedure 
in  tbe  courts,  and  give  tbe  parties  interested  tbe 
fullest  opportunity  to  be  beard,  and  yet  it  migbt  be 
tbat  its  final  action  would  be  inconsistent  witb  tbat 
amendment."  * 

A  municipal  ordinance  so  enforced  by  tbe  autbori- 
ties cbarged  witb  its  administration  as  to  work  a 
substantial  deprivation  of  rigbts  to  a  particular 
class  of  residents  is  also  void  witbin  tbis  probibi- 
tion.^  In  a  case  so  bolding,  tbe  court  said :  "  Tbougb 
tbe  law  itself  be  fair  on  its  face  and  impartial  in  ap- 
pearance, yet,  if  it  is  applied  and  administered  by 
public  authority  witb  an  evil  eye  and  an  unequal 
hand,  so  as  practically  to  make  unjust  and  illegal 
discriminations  between  persons  in  similar  circum- 
stances, material  to  tbeir  rigbts,  tbe  denial  of  equal 
justice  is  still  witbin  tbe  prohibition  of  tbe  Consti- 
tution. ' ' 

But  tbe  class  of  State  acts  most  commonly  held 
void  as  denying  due  process  of  law  are  enactments 
of  tbe  legislature.  Considering  tbis  class  of  cases, 
tbe  United  States  Supreme  Court  in  Hurtado  v.  Cal- 
ifornia'^ said:  *'Tbe  concessions  of  Magna  Carta 
were  wrung  from  tbe  king  as  guaranties  against  tbe 
oppressions  and  usurpations  of  bis  prerogative.  It 
did  not  enter  into  tbe  minds  of  tbe  barons  to  provide 
security  against  tbeir  own  body  or  in  favor  of  tbe 

1  Scott  V.  McNeal,  154  U.  S.  34. 

8  Chicago,  etc.,  R.  Co.  v.  Chicago,   166  U.  S.  226. 

»Yick  Wo  V.  Hopkins,  118  U.  S.  373. 

1  110  U.  S.  516. 


DUE  PROCESS  OF  LAW  29 

commons  by  limiting  the  power  of  parliament;  so    Chapter 

that  bills  of  attainder,  ex  post  facto  laws,  laws  de-  

daring  forfeitures  of  estates,  and  other  arbitrary 
acts  of  leprislation.  which  occur  so  frequently  in  Eng- 
lish  history,  were  never  regarded  as  inconsistent 
with  the  law  of  the  land,  for  notwithstanding  what 
was  attributed  to  Lord  Coke  in  Bonham's  Case,^  the 
omnipotence  of  parliament  over  the  common  law 
was  absolute  even  against  common  right  and  rea- 
son. The  actual  and  practical  security  for  English 
liberty  against  legislative  tyranny  was  the  power  of 
a  free  public  opinion  represented  by  the  commons. 
In  this  country  written  constitutions  were  deemed 
essential  to  protect  the  rights  and  liberties  of  the 
people  against  the  encroachments  of  power  delegated 
to  their  governments,  and  the  provisions  of  Magna 
Carta  were  incorporated  into  bills  of  rights.  They, 
were  limitations  upon  all  the  powers  of  government, 
legislative  as  well  as  executive  and  judicial.  It  nec- 
essarily happened,  therefore,  that  as  these  broad  and 
general  maxims  of  liberty  and  justice  held  in  our 
system  a  different  place  and  performed  a  different 
function  from  their  position  and  office  in  English 
constitutional  history  and  law,  they  would  receive 
and  justify  a  corresponding  and  more  comprehen- 
sive interpretation.  Applied  in  England  only  as 
guards  against  executive  usurpation  and  tyranny, 
here  they  have  become  bulwarks  also  against  arbi- 
trary legislation."^  Applying  the  principle  of  due 
process  to  legislative  acts,  as  this  reasoning  requires, 
the  statement  is   frequently  made  that  the  terms 

2  8  Coke  115.   118a. 

3  See  also  Davidson  r.  New  Orleans,  96  U.  S.  97. 


30 


DUE  PROCESS  OF  LAW 


Chapter    '  <  jaw  of  the  land ' '  and  ' '  due  process  of  law ' '  demand 

'■ —   something  more  than  a  mere  statute ;  for  a  State  can 

not  make  anything  due  process  of  law  which  by  its^ 
own  legislation  it  chooses  to  declare  such."^  "If  life, 
liberty  and  property  could  be  taken  away  by  the 
direct  operation  of  a  statute,  the  enjoj^nent  of  these 
rights  would  depend  upon  the  will  and  caprice  of 
;),;  the  legislature,  and  the  [Constitutional]  provision 
j^j^. would  be  a  mere  nullity."  ^ 

The  arguments  which  extend  the  national  guar- 
anties to  all  departments  of  government  undoubt- 
edly apply  to  the  provisions  of  State  constitutions, 
and  it  has  been  so  held.^ 


Relation  of 
the  Four- 
teenth to 
the  first 
eight 
amend- 
ments. 


DUE   PEOCESS   IN    THE   FOURTEENTH   AND  IN   THE   FIFTH 
AMENDMENTS  COMPARED. 

The  first  eight  amendments  to  the  Constitution  of 
the  United  States,  which  form  the  so-called  Federal 
Bill  of  Rights,  enumerate  a  number  of  rights  with 
the  enjoyment  of  which  by  the  people  there  may  be 
no  interference  on  the  part  of  the  national  govern- 
ment. The  Fourteenth  Amendment  contains  a  much 
less  extensive  and  specific  recital  of  rights  protected 
against  the  State.  As  due  process  of  law  has  been 
defined  only  in  the  most  general  terms  and  i^  in  its 
nature  not  susceptible  of  exhaustive  characteriza- 
tion, it  was  inevitable  that  sooner  or  later  the  ques- 
tion should  arise  whether  under  that  phrase,  in  the 

4  Argument  of  Daniel  Webster  in  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  (U.  S.)  581;  Davidson  V.  New  Orleans,  96  U.  S.  97; 
Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226;  Hoke  v.  Henderson, 
4  Dev.  L.  (15  N.  Car.)   1. 

5  Dorman  v.  State,  34  Ala.  216. 

G Mulligan  v.  Smith,  59  Cal.  206. 


DUE  PROCESS  OF  LAW  31 


Fourteenth  Amendment,  security  from  the  violation    Chapter 

of  certain  of  the  rights  specifically  guaranteed  by  

the  first  eight  amendments  could  be  enforced. 


'Due  Proc- 


There  is  at  least  a  prima  facie  presumption  that  ess"  and 


other 


the  other  rights  enumerated  in  the  Fifth  Amendment  rights  in 

^l—t M«i—  iMMli  l<ll>irillMW>»IM.I|^(|Mi,Mil«M|llW«ll*WM'''"«"i>'W«'*'"*''*«»*^-^''^  thC    Fifth 

were  not  considered  as  included  in  ''due  process  of  ^^^^^"'^■ 
law"  which  is  contained  in  the  same  list  with 
them.  One  of  these  rights  is  indictment  by  a  grand 
jury  for  capital  or  infamous  crimes.  In  Hurtado  v. 
California,'^  when  the  legality  of  a  conviction  of 
murder  upon  an  information  filed  by  the  district 
attorney  according  to  the  constitution  and  laws  of 
California  was  questioned  upon  the  ground  that  the 
person  convicted  had  been  deprived  of  the  due  proc- 
ess of  law  to  which  he  was  entitled  under  the  Four- 
teenth Amendment,  the  Supreme  Court  of  the  United 
States  decided  against  this  contention.  ''AVe  are 
to  construe  this  phrase  in  the  Fourteenth  Amend- 
ment," said  the  court,  "by  the  usiis  loquendi  of  the 
Constitution  itself.  The  same  words  are  contained 
in  the  Fifth  Amendment.  That  article  makes  spe- 
cific and  express  provision  for  perpetuating  the  in- 
stitution of  the  grand  jury  so  far  as  relates  to  prose- 
cutions for  the  more  aggravated  crimes,  under  the 
laws  of  the  United  States.  .  .  .  According  to  a 
recognized  canon  of  interpretation,  especially  ap- 
plicable to  formal  and  solemn  instruments  of  consti- 
tutional law,  we  are  forbidden  to  assume,  without 
clear  reasori  in  ihp.  nnntrarv,  thnt  any  part  of  this. 
most  important  ai"^T^<^|ppTi+.  is  snnerflnnns.  The  nat- 
ural and  obvious  inference  is,  that  in  the  sense  of 
the  Constitution,  'due  process  of  law'  was  not  meant 

7 110  U.  S.  516. 


32  DUE  PROCESS  OF  LAW 

Chapter    or  intended  to  include,  ex  vi  termini,  the  institution 

and  procedure  of  a  grand  jury  in  any  case.     The 

conclusion  is  equally  irresistible  that  when  the  same 

phrase  was  employed  in  the  Fourteenth  Amendment 

to  restrain  the  action  of  the  States,  it  was  used  in  the 

same  sense  and  with  no  greater  extent ;  and  that  if  in 

the  adoption  of  that  amendment  it  had  been  part  of 

its  purpose  to  perpetuate  the  institution  of  the  grand 

jury  in  all  the  States,  it  would  have  embodied,  as  did 

the  Fifth  Amendment,  express  declarations  to  that 

effect." 

^ro?ess"  ^^^  identity  of  the  meaning  of  the  phrase  in 

in^tiie''^^      the  two  amendments  is  here  asserted  for  reasons 

Fourteenth   whlch  would  sccm  to  exclude  equally  its  extension 

Amend- 
ments? to  any  of  the  rights  enumerated  in  the  Fifth  Amend- 
ment.^ This  view  of  the  effect  of  the  Fourteenth 
Amendment  is  developed  in  a  later  case,  when  the 
court,  after  referring  to  Hurtado  v.  California  as 
having  pointed  out  that  ''due  process"  was  used  in 
the  same  sense  in  both  amendments  and  with  no 
greater  extent  of  meaning  in  the  Fourteenth,  pro- 
ceeded: ''As  due  process  of  law  in  the  Fifth 
Amendment  referred  to  that  law  of  the  land  which 
derives  its  authority  from  the  legislative  powers  con- 
ferred on  Congress,  by  the  Constitution  of  the 
United  States,  exercised  within  the  limits  therein 
prescribed,  and  interpreted  according  to  the  princi- 
ples of  the  common  law,  so  in  the  Fourteenth  Amend- 
ment, the  same  words  refer  to  that  law  of  the  land 
in  each  State  which  derives  its  authority  from  the 
inherent  and  reserved  powers  of  the  State  exerted 

8  See  dissenting  opinions  of  Tlnrlnn,  J.,  in  Hnrtado  V.  California, 
110  U.  S.  538;  and  in  Maxwell  v.  Dow,  176  U.  S.  581. 


DUE  PROCESS  OF  LAW 


within  the  limits  of  those  fundamental  principles  of    Chapter 

liberty  and  justice  which  lie  at  the  base  of  all  our  

civil  and  political  institutions. ' '  ^     But  in  Chicago 
etc.,  R.  Co.  V.  Chicago,^  decided  in  1897,  it  was  de- 
termined by  the  same  court  that  due  process  of  law 
does  not  i^ermit  a  State  to  approiDriate  private  prop-         i     t 
erty  for  a  public  use  without  just  compensation,  al-    /jZi  ^ 
thougli  tile  Fifth  Amendment  specifically  provides -2^^^^ 
for  compensation  in  such  cases. 

The  conclusion  in  this  case  (in  which  the  opinion  SfFjJ,*^"^ 
was  rendered  by  Mr.  Justice  Harlan,  who  dissented  Amend- 
in  Hurtado  v.  California)  seems  to  be  opposed  to  the  "oTdepend 

on  prior 

reasoning  quoted  above,  and  in  order  to  harmonize  If^^^""^' 
the  cases  we  are  led  to  infer  that  the  nature  of  the 
right  denied,^  whether  or  not  that  right  is  guaran- 
teed by  the  Fifth  or  any  other  of  the  earlier  amend- 
ments restraining  federal  action,  determines  whether 
due  process  is  present  as  required  by  the  Fourteenth 
Amendment.  This  inference  is  entirely  in  harmony 
with  all  that  is  said  in  Chicago,  etc.,  R.  Co.  v.  Chi- 

9  In  re  Kemmler,  136  U.  S.  436. 

1  166  U.  S.  226,  followed  in  Norwood  v.  Baker,  172  U.  S.  269, 
277;    San  Diego  Land,  etc.,  Co.  v.   National   City,    174  U.   S.   754. 

In  Fallbrook  Irrigation  Dist.  V.  Bradley,  164  U.  S.  112,  there  is  a 
dictum  by  Mr.  Justice  Peckham,  who  delivered  the  opinion  of  the 
court,  which  indicates  that  he  considered  the  absence  of  compensa- 
tion could  not  be  relied  on  as  against  the  taking  of  private  property 
by  the  State  if  the  taking  was  for  a  public  purpose. 

2  In  Dreyer  r.  Illinois,  187  U.  S.  85,  the  question  whether  double 
jeopardy  (which  is  forbidden  by  the  Fifth  Amendment)  is  prohibited 
by  the  due  process  clause  of  the  Fourteenth  Amendment,  is  raised 
but  not  determined.  That  the  infliction  of  cruel  and  unusual  pun- 
ishment, forbidden  to  the  United  States  by  the  Eighth  Amendment, 
is  not  forbidden  to  the  States  by  this  clause  of  the  Fourteenth  Amend- 
ment, provided  equality  of  punishment  is  preserved,  is  inferable  from 
In  re  Kemmler,  136  U.  S.  436. 

3  I 


34  DUE  PROCESS  OF  LAW  ' 

Chapter    'cago,  where  the  reasoning  is  as  to  the  fundamental 

— ■ character  of  the  right  to  compensation. 

That  the  specific  mention  of  rights  in  the  first 
eight  amendments  has  no  necessary  connection  with 
their  inclusion  in  or  exclusion  from  the  first  section 
of  the  Fourteenth  Amendment  appears  also  from  a 
consideration  of  the  course  of  decision  with  regard 
to  the  privileges  and  immunities  of  citizens  of  the 
United  States,  secured  by  the  Fourteenth  iVmend- 
ment  against  abridgment  by  the  States.  The  argu- 
ment has  frequently  been  advanced  that  the  rights 
protected  by  the  first  eight  amendments  are  such 
privileges  and  immunities ;  ^  but  though  the  view  has 
had  distinguished  advocates,^  the  court  has  held  oth- 
erwise and  has  asserted  the  true  criterion  to  be  the 
fundamental  character  of  the  right  for  which  pro- 
tection is  claimed,'  so  that  some  of  the  rights  enu- 
merated in  the  early  amendments  may  be  privileges 
and  immunities  of  citizenship,  while  others  are  not.^ 

3  Notably  in  Presser  v.  Illinois,  116  U.  S.  252;  and  in  Spies  V. 
Illinois,  123  U.  S.  131,  by  Mr.  John  Randolph  Tucker.  In  both 
these  cases  the  decision  passed  off  on  other  points. 

*  It  is  implied  though  not  distinctly  announced  in  Mr.  Justice 
Harlan's  dissenting  opinion  in  Hurtado  r.  California,  110  U.  S.  516, 
and  is  adopted  by  the  dissenting  justices  in  O'Neil  V.  Vermont,  144 
U.  S.  323.  See  the  opinion  of  Field,  J.,  at  pp.  361,  363;  of  Harlan, 
J.,  at  p.  370.  It  is  strongly  advocated  by  Mr.  Guthrie  in  his  book 
on  the  Fourteenth  Amendment,  which  appeared  before  the  decision  in 
Maxwell  v.  Dow,  176  U.  S.  581.  Mr.  Gutlvrie  lays  much  stress 
on  the  opinions  expressed  in  debate  by  the  advocates  of  the  amend- 
ment in  Congress,  an  argument  fully  met  in  the  case  last  cited. 

s  Maxwell  v.  Dow,  176  U.  S.  581,  Harlan,  J.,  dissenting  at  length 
on  the  ground  inter  alia  indicated  in  the  last  note.  The  view  stated 
in  the  text  is  necessarily  involved  also,  as  is  pointed  out  in  Maxwell 
V.  Dow,  in  the  holding  in  Hurtado  v.  California,  110  U.  S.  516,  and 
the  line  of  cases  which  follow  it. 

6  In  Adams  r.  New  York,  192  U.  S.  504,  the  question  is  raised, 
but  its  determination  was  not  found  necessary,  whether   the  right 


DUE  PROCESS  OF  LAW  35 


In  1901,  the  court,  having  occasion  to  consider    Chapter 
the  meaning  of  due  process  in  the  Fifth  and  Four- 


identity  of 


teenth  Amendments,  said:  "While  the  language  of  meaning 
those  amendments  is  the  same,  yet  as  they  were  en- 
grafted upon  the  Constitution  at  different  times  and. 
in  widely  different  circmnstances  of  our  national 
life,  it  may  be  that  questions  may  arise  in  which  dif- 
ferent constructions  and  applications  of  their  pro- 
visions may  be  proper. ' '  But  in  the  decision  of  the 
case  before  it,  the  court  proceeded  ''on  the  as- 
sumption that  the  legal  import  of  the  phrase,  'due 
process  of  law, '  is  the  same  in  both  amendments. "  '^ 


RELATION  OF  FEDEEAL  GOVERISTMENT  TOWARD  DUE  PROCESS 
BY  THE  STATES. 

Supervisory  Powers  of  the  Supreme  Court  of  the 
United  States. 

Before  the  passage  of  the  Fourteenth  Amendment  2"  b'''^°'^" 
the  security  of  the  citizens  of  the  several  States  for  w  and^' 
due  process  of  law  in  proceedings  by  the  State  lay  in  fhe^Four- 

•         •  •  •  teenth 

its  institutions  alone.    Even  if  due  process  was  de-  Amend- 

^  ment. 

nied,  the  federal  government  had  no  right  to  inter- 
to  be  free  from  unreasonable  searches  and  seizures  (Const.  U.  S., 
Amend.  IV)  and  ffom  being  compelled  to  testify  against  one's  self 
(Const.,  Amend.  V)  are  such  privileges  and  immunities.  See  also 
In  re  Kemmler,  136  U.  S.  436,  that  immunity  from  cruel  and  un- 
usual punishment  is  not  an  immunity  of  citizenship  in  the  United 
States  as  against  the  States. 

7  French  v.   Barber  Asphalt  Paving  Co.,   181  U.  S.  324. 

"  The  Fourteenth  Amendment,"  it  has  been  held,  "  legitimately 
operates  to  extend  to  the  citizens  and  residents  of  the  States  the  same 
protection  against  arbitrary  State  legislation  affecting  life,  liberty 
and  property  as  is  offered  by  the  Fifth  Amendment  against  similar 
legislation  by  Congress."     Hibben  v.  Smith,  191  U.  S.  310,  325. 


36  DUE  PROCESS  OF  LAW 

Chapter    fere.    The  Fourteenth  Amendment  changed  this  con- 

dition  of  affairs.     It  made  it  a  matter  of  national 

concern  that  the  State  should  not  deny  due  process 
to  its  citizens  and  to  others.  It  gave  to  the  United 
States  the  right  to  supervise  the  performance  of  this 
duty,  and  transferred  from  the  State  to  the  Federal 
Supreme  Court  the  ultimate  decision  on  the  question 
of  the  presence  of  due  process  in  all  proceedings 
affecting  life,  liberty,  and  property.  But  under  the 
amendment  the  authority  of  the  federal  court  is 
merely  to  determine  whether  the  State  by  some  offi- 
cial action  has  provided  due  process  or  has  failed  in 
that  duty ;  and  if  a  denial  of  due  process  appears,  it 
can  only  pronounce  the  proceedings  void.  The  power 
of  the  federal  government  ordinarily  ends  with 
that  act.  Thus  the  primary  duty  of  providing  for 
the  protection  of  life,  liberty,  and  property  by  due 
process  of  law  rests  still  with  the  States,  and  the 
Fourteenth  Amendment  operates  merely  as  a  guar- 
anty additional  to  the  State  constitutions  against 
encroachments  on  the  part  of  the  States  upon  funda- 
mental rights,  which  their  governments  were  created 
to  secure.  It  did  not  radically  change  the  whole 
theory  of  the  relations  of  the  State  and  federal  gov- 
ernments to  each  other  and  of  both  governments  to 
the  people.^  It  has  not  had  the  effect  of  converting 
the  national  Supreme  Court  into  a  general  court  of 
appeal,  where  decisions  of  the  State  courts,  involv- 
ing merely  questions  of  general  justice  and  equitable 

8U.  S.  V.  Cruikshank,  92  U.  S.  542;  Slaughter-House  Cases,  16 
Wall.  (U.  S.)  36;  In  re  Kemmler,  136  U.  S.  436;  Orr  v.  Oilman, 
183  U.  S.  278,  286;  U.  S.  v.  Moore,  129  Fed.  Rep.  630;  Ex  p.  Rig- 
gins,  134  Fed.  Rep.  404. 


DUE  PROCESS  OF  LAW  37 

considerations  in  the  taking  of  life  or  property,  may    chapter 

be  reviewed.^  

In  exerting  its  supervisory  jurisdiction,  the  sole  ""^[^^X 
question  before  the  court  is  whether  the  State's  act  £1!'°" 
has  infringed  the  provision  of  the  Fourteenth 
Amendment  or  some  valid  act  of  Congress  made  in 
pursuance  thereof.^  Upon  all  questions  involving 
merely  the  conformity  of  the  act  with  the  constitu- 
tion of  the  State,  the  decision  of  the  highest  State 
court  is  final  and  conclusive,  however  unjust,  op- 
pressive, or  harsh  an  act  may  have  been  upheld  by 
it.^  But  when  the  State's  decision  is  against  the 
validity  of  a  right  claimed  under  the  federal  Con- 
stitution or  laws,  the  denial  of  due  process  under 
the  national  Constitution  becomes  a  question.^ 

Within  these  principles,  the  presence  of  the  es-  fssaPS"'^' 
sential  features  of  due  process  is  always  a  federal  with°™'^ 
question,  which  the  United  States  Supreme  Court  procedure, 
will  decide  for  itself  r/but  due  process,  so  far  as  mere 
procedure  not  affecting  fundamental  rights  is  con- 
cerned, is  process  due  according  to  the  law  of  the 
State,'*  and  the  determination  of  the  State  is  con- 

9  Davidson  v.  New  Orleans,  96  U.  S.  97,  104;  Missouri  Pae.  R. 
Co.  V.  Humes,  115  U.  S.  512,  520;  New  York,  etc.,  R.  Co.  v.  Bristol, 
151  U.  S.  556;  Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112. 

1  Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112. 

2Kirtland  v.  Hotchkiss,  100  U.  S.  491;  Missouri  Pae.  R.  Co.  v. 
Humes,  115  U.  S.  512,  520;  Fallbrook  Irrigation  Dist.  v.  Bradley, 
164  U.  S.  112;  French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324; 
Hibben  v.  Smith,  191  U.  S.  310;  Olsen  v.  Smith,  195  U.S.  332;  Na- 
tional Cotton  Oil  Co.  V.  Texas,  197  U.  S.  130,  131. 

When  the  interpretation  in  a  particular  way  of  a  State  law  by 
the  State  court  was  unnecessary  to  the  determination  of  the  case, 
the  Federal  Supreme  Court  need  not  pass  on  the  validity  of  the 
State's  interpretation.     King  v.  Mullins,  171  U.  S.  404. 

3  Green  Bay,  etc..  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58. 

4  Walker  v.  Sauvinet,  92  U.  S.  90, 


Q  i2  J  a  L? 

^J  O  T  u  o 


38  DUE  PROCESS  OF  LAW 

Chapter    clusivG  as  to  wliat  the  state  law  requires,^  however 

'■ —  much  the  requirements  may  differ  among  the  several 

States.  While  the  cardinal  principles  of  justice  are 
immutable,  the  methods  by  which  justice  is  admin- 
istered are  subject  to  constant  change  in  conformity 
to  the  wishes  of  the  citizens  of  the  different  States, 
and  the  course  of  legislation  has  already  produced 
great  divergencies  in  respect  to  form.  /  On  one  side 
of  a  State  line  there  may  be  a  right  to  trial  by  jury 
and  on  the  other  side  no  such  right  may  exist;  but 
the  orderly  procedure  laid  down  in  each  State  is  due 
process  of  law ;  for  the  Fourteenth  Amendment  does 
not  profess  to  secure  to  all  persons  in  the  United 
States  the  benefit  of  the  same  laws  and  the  same 
remedies.®  In  a  case  which  involved  the  presence 
of  due  process  in  a  proceeding  for  the  collection  of 
taxes,  the  Supreme  Court  observed:  ''The  vice 
which  underlies  the  entire  argument  of  the  plaintiff 
in  error  arises  from  a  failure  to  distinguish  between 
the  essentials  of  due  process  of  law  under  the  Four- 
teenth Amendment  and  matters  which  may  or  may 
not  be  essential  under  the  terms  of  a  State  assessing 
or  taxing  law.  The  two  are  neither  correlative  nor 
coterminous.  The  first,  due  process  of  law,  must  be 
found  in  the  State  statute  and  can  not  be  departed 

/.  "Law  in  its  regular  administration  through  courts  of  justice  is 
due  process,  and,  when  secured  by  the  law  of  the  State,  the  consti- 
tutional requisition  is  satisfied,"     Caldwell  v.  Texas,  137  U.  S.  692. 

5  Caldwell  V.  Texas,  137  U.  S.  692;  Iowa  Cent.  R.  Co.  v.  Iowa, 
160  U.  S.  389 ;  In  re  Krug,  79  Fed.  Rep.  308. 

When  the  construction  of  a  statute  by  the  State  court  is  such 
that  due  process  of  law  exists  in  the  statute  as  construed,  the  con- 
struction is  conclusive.  Baltimore  Traction  Co.  v.  Belt  R.  Co.,  151 
U.  S.  138. 

c  Missouri  v.  Lewis,  101  U.  S.  22,  31;  Holden  v.  Hardy,  169  U.  S. 
366. 


DUE  PROCESS  OF  LAW  39 


from  without  violating  the  Constitution  of  the  United    Chapter 


States.  The  other  depends  on  the  law-making  power 
of  the  State,  and,  as  it  is  solely  the  result  of  such 
authority,  may  vary  or  change  as  the  legislative  will 
of  the  State  may  see  fit  to  ordain.  It  follows  that 
to  detennine  the  existence  of  one  (due  process  of 
law)  is  the  final  province  of  this  court,  while  the 
ascertainment  of  the  other  (that  is,  what  is  merely 
essential  under  the  State  statute)  is  a  State  question 
within  the  final  jurisdiction  of  the  courts  of  last 
resort  of  the  several  States.  When,  then,  a  State 
court  decides  that  a  particular  formality  was  or  was 
not  essential  under  the  State  statute,  such  decision 
presents  no  federal  question,  providing  always  the 
statute,  as  thus  construed,  does  not  violate  the  Con- 
stitution of  the  United  States  by  depriving  of  prop- 
erty without  due  process  of  law.  This  paramount 
requirement  being  fulfilled,  as  to  other  matters,  the 
State's  interpretation  of  its  own  laws  is  controlling 
and  decisive. ' '  "^ 

Always  must  the  court  look  beyond  the  form  {^Xs'to 
of  the  question  presented,  to  its  substance  to  deter-  ^"''stance. 
mine  whether  an  essential  of  due  process  is  involved.^ 
Thus  the  question  of  the  reasonableness  of  the  no- 
tice required  under  a  State  statute  involves  a  vital 
element  of  due  process,  and  the  decision  of  the  State 
court  on  this  question  is  not  binding  on  the  Federal 
Supreme  Court.^     On  the  other  hand,  methods  of 

7  Castillo  V.  McComiico,  168  U.  S.  674;  French  v.  Taylor,  199 
U.  S.  274.  See  also  Iowa  Cent.  R.  Co.  v.  Iowa,  160  U.  S.  389 ;  Allen. 
V.  Georgia,  166  U.  S.  138. 

8  Simon  v.  Craft,  182  U.  S.  436;  Louisville,  etc.,  R.  Co.  v.  Schmidt, 
177  U.  S.  230. 

9  Scott  V.  McNeal,  154  U.  S.  34,  35;  Roller  v.  Holly,  176  U.  S. 
398. 


40 


DUE  PROCESS  OF  LAW 


Chapter    procedure  popularly  regarded  as  most  .fundamental 
and  necessary  safeguards  to  the  rights  of  the  citizen, 


Irregulari- 
ties and 
errors  in 
State 
court. 


such  as  indictment  by  a  grand  jury  or  trial  by  jury, 
are  within  the  power  of  the  State  and  may  be  granted 
or  taken  away,  without  infringing  the  Fourteenth 
Amendment.^ 

As  it  is  preeminently  and  exclusively  the  duty  of 
the  State  courts  to  construe  the  statutes  of  the 
State,  irregularities  in  proceedings  or  errors  in  con- 
struction of  statutes  on  the  part  of  State  courts  act- 
ing within  their  jurisdiction  will  not  constitute  a 
denial  of  due  process  so  long  as  the  fundamental 
requisites  thereof  are  present,^  In  a  case  where 
an  infant  contended  that  he  was  deprived  of  due 
process  of  law  by  his  guardian's  sale  of  his  real 
property  under  an  order  of  court,  but  without  giv- 
ing bond  as  required  by  statute,  the  court  said: 
''The  statute  under  which  the  court  acted  would,  if 
followed,  have  given  Arrowsmith  all  the  protection 
which  had  been  guaranteed  to  him  by  the  Constitu- 
tion of  the  United  States.  The  bond  in  question  was 
a  matter  of  procedure  only,  and  if  it  ought  to  have 
been  required  the  court  erred  in  ordering  a  sale 
without  having  first  caused  it  to  be  filed  and  ap- 
proved.   At  most,  this  was  an  error  of  judgment 


1  See  Holden  v.  Hardy.  169  U.  S.  366. 

3/n  re  Converse,  137  U.  S.  631;  Bergemann  v.  Backer,  1.57  U.  S. 
655;  Central  Land  Co.  v.  Laidley.  159  U.  S.  103;  Iowa  Cent.  R.  Co. 
,r.  Iowa,  160  U.  S.  389;  National  Cotton  Oil  Co.  v.  Texas,  197  U.  S. 
115,  130,  131. 

As  has  been  seen,  supra,  p.  27,  judicial  action  is  as  much  within 
the  Fourteenth  Amendment  as  legislative  action,  and  therefore  if  a 
State  judgment  in  terms  or  by  its  necessary  operation  deprives  a 
party  of  due  process,  it  is  reviewable.  See  Lehigh  Water  Co.  v. 
Easton,  121  U.  S.  388,  392. 


DUE  PROCESS  OF  LAW  41 

in  the  court.     The  constitutional  provision  is,  'Nor    chapter 

shall  any  State  deprive  any  person  of  life,  liberty  or  '■ — 

property  without  due  process  of  law.'  Certainly  a 
State  can  not  be  deemed  guilty  of  a  violation  of  this 
constitutional  obligation  simply  because  one  of  its 
courts,  while  acting  within  its  jurisdiction,  has  made 
an  erroneous  decision.  The  legislature  of  a  State 
performs  its  whole  duty  under  the  Constitution  in 
this  particular,  when  it  provides  a  law  for  the  govern- 
ment of  its  conrts,  while  exercising  their  respective 
jurisdictions,  which,  if  followed,  will  furnish  the  par- 
ties the  necessary  constitutional  protection.  All 
after  that  pertains  to  the  courts,  and  the  parties  are 
left  to  their  appropriate  remedies  for  the  correction 
of  errors  in  judicial  proceedings."*  Nor  can  the 
denial  of  the  right  of  trial  by  jury,  though  it  is 
clearly  erroneous  to  construe  the  laws  of  the  State  as 
justifying  the  refusal,  work  a  deprivation  of  due 
process.^  But  the  principle  that  erroneous  deci- 
sions of  State  courts  do  not  work  a  denial  of  due 
process  is  to  be  limited  to  questions  involving  con- 
formity with  the  State  constitution  and  laws,  mat- 
ters upon  which  the  decision  of  the  State  courts  is 
final,  and  even  in  such  a  case  the  decision  must  not 
deprive  a  person  of  those  fundamental  rights  guar- 
anteed by  the  Constitution,  which  may  be  infringed 
by  the  conduct  of  the  court  in  its  administration  of 
the  law  as  well  as  by  the  law  itself  under  which  the 
court  is  proceeding. 

*  Arrowsmith  v.  Harmoning,  118  U.  S.  194. 
5  Iowa  Cent.  E.  Co.  v.  Iowa,  160  U.  S.  389. 


Chapter 
I. 


42  DUE  PROCESS  OF  LAW 


Direct  Enforcement  of  Due  Process  by  Congress. 


Legislative  So  far  the  function  of  the  national  government 
&ongrls°s.  under  the  Fourteenth  Amendment  has  been  consid- 
ered only  in  its  supervisory  and,  so  to  say,  negative 
aspect.  May  Congress  in  addition  by  direct  legisla- 
tion provide  for  the  enjoyment  of  due  process  by 
citizens  of  the  several  States?  Congress,  first,  has 
such  power  to  legislate  in  protection  of  rights  as  is 
given  it  by  direct  grant  in  the  Constitution,  and  sec- 
ond, the  power  to  protect  and  enforce  every  right 
created  by,  arising  under,  or  dependent  upon  the 
Constitution  of  the  United  States.  The  second  or 
implied  power  may  be  based  on  the  duty  of  the  gov- 
ernment to  protect  its  citizens  in  the  enjoyment  of 
the  rights  conferred  on  them,  which  is  correlative  to 
the  grant  of  such  rights ;  or  it  may  be  found  in  the 
general  power  '^  ' '  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof."^ 
Each  of  the  Thirteenth,  Fourteenth,  and  Fifteenth 
Amendments  contains  the  specific  declaration  that 
''Congress  shall  have  power  to  enforce  this  provi- 
sion by  appropriate  legislation."  By  this  declara- 
tion, ''some  legislation,"  said  the  Supreme  Court, 
"is  contemplated  to  make  the  amendments  fully  ef- 
fective. AYhatever  legislation  is  appropriate,  that 
is,  adapted  to  carry  out  the  objects  the  amendments 
have  in  view,  whatever  tends  to  enforce  submission 

7  Const.  U.  S..  Art.  I,  §  8,  U  18. 

8U.  S.  V.  Cruikshank,  1  Woods  (U.  S.)   308;  Logan  v.  U.  S.,  144 
U.  S.  263. 


process; 


DUE  PROCESS  OF  LAW  43 

to  the  prohibitions  they  contain,  and  to  secure  to  all    chapter 

persons  the  enjoyment  of  the  perfect  equality  of  '■ — 

civil  rights  and  the  equal  protection  of  the  laws 
against  State  denial  or  invasion,  if  not  prohibited,  is 
brought  within  the  domain  of  Congressional 
power. ' '  ^ 

The  object  of  the  Fourteenth  Amendment,  as  has  ^ram'to''* 
been  declared  in  repeated  decisions,  is  not  to  confer  due"'^ 
the  rights  enumerated  in  its  first  section  directly  on 
any  one,  but  to  guarantee  all  citizens  or  persons 
against  being  deprived  of  those  rights  by  State 
action.  The  enumerated  rights  are  recognized  as 
preexisting  and  fundamental,  not  created  by  nor  de- 
pendent on  the  Constitution,  and  the  only  right  con- 
ferred by  that  instrument  is  the  right  of  exemption 
from  the  prohibited  denial  by  the  States  or  their 
agencies.!  ' ' It  [the  Fourteenth  Amendment] , ' '  said 
Mr.  Justice  Bradley,  in  the  United  States  Circuit 
Court  in  a  case  affirmed  by  the  Supreme  Oourt,^  "is 
a  guaranty  of  protection  against  the  acts  of  the 
State  government  itself.  It  is  a  guaranty  against 
the  exertion  of  arbitrary  and  tyrannical  power  on 
the  part  of  the  government  and  legislature  of  the 
State,  not  a  guaranty  against  the  commission  of 
individual  offenses;  and  the  power  of  Congress, 
whether  express  or  implied,  to  legislate  for  the  en- 
forcement of  such  a  guaranty  does  not  extend  to  the 
passage  of  laws  for  the  suppression  of  crime  within 

9  Ex  p.  Virginia,  100  U.  S.  339. 

lU.  S.  r.  Cruikshank,  92  U.  S.  542,  affirming  1  Woods  (U.  S.) 
308;  Virginia  v.  Rives,  100  U.  S.  313;  Ese  p.  Virginia,  lOOU.  S.  339; 
U.  S.  V.  Harris,  106  U.  S.  620;  Civil  Rights  Cases,  109  U.  S.  3; 
[Ex  p.  Yarbrough,  110  U.  S.  651;  Logan  r.  U.  S.,  144  U.  S.  263; 
James  v.  Bowman,  190  U.  S.   127. 

2U.  S.  V.  Cruikshank,  1  Woods  (U.  S.)  308,  affirmed  92  U.  S.  542. 


44  DUE  PEOCESS  OF  LAW 

Chapter    the  States.    The  enforcement  of  the  guaranty  does 

not  require  or  authorize  Congress  to  perform  'the 

duty  that  the  g-uaranty  itself  supposes  it  to  be  the 
duty  of  the  State  to  perform,  and  which  it  requires 
the  State  to  perform. '  "  ^  Evidently,  therefore,  this 
grant  of  power  confers  on  Congress  no  authority 
to  legislate  with  respect  to  these  rights  except  as  to 
their  denial  by  the  States,  and  it  can  not,  solely  by 
virtue  of  the  clause  conferring  power  to  enforce 
by  appropriate  legislation,  pass  acts  to  secure,  as 
against  individuals,  the  affirmative  enforcement  of 
the  rights  specified.  So  far  as  this  provision  goes, 
the  duty  of  legislation  with  regard  to  the  individual 
enjoyment  of  due  process  rests  still  with  the  State.-^ 
There  being  no  direct  grant,  we  turn  to  the  im- 
plied power  of  Congress.  But  this  extends  only  to 
protect  rights  arising  under  or  dependent  on  the 
Federal  Constitution;  and  not  due  process  of  law, 
but  only  the  exemption  from  its  denial  by  the  State, 
is  included  iu  that  category.  Therefore,  it  would 
seem  plain  that  Congress  has  no  power  to  legislate 
directly  to  protect  the  citizen  in  the  enjoyment  of 
this  right  as  against  the  acts  of  individuals  depriv- 
ing or  tending  to  deprive  him  thereof.  Nor  has  it 
attempted  to  do  so  by  providing^  that  "if  two  or 

3  Quoted  and  approved  in  U.  S.  v.  Harris,  106  U.  S.  629.  See 
also  Civil  Rights  Cases,  109  U.  S.  3. 

*  See  cases  cited  in  the  last  three  notes. 

BRev.  Stat.  U.  S.,  §5508;  1  Fed.  Stat.  Annot.  802. 

This  statute  is  constitutional,  but  applies  only  to  rights  secured 
by  the  Constitution  and  laws  of  the  United  States.  For  instance, 
the  right  to  be  protected  from  violence  while  in  the  custody  of  a 
United  States  marshal  awaiting  trial  imder  indictment  in  a  federal 
court,  is  a  right,  the  enforcement  of  which  devolves  on  the  national 
government  under  its  Constituti^m  and  laws.     If  a  person  in  this 


plied 
power. 


contrary. 


DUE  PROCESS  OF  LAW  45 

more  persons  conspire  to  injure,  oppress,  threaten    chapter 

or  intimidate  any  citizen  in  the  free  exercise  or  en-  

joyment  of  any  right  or  privilege  secured  to  him  by 
the  Constitution  or  laws  of  the  United  States,  or  be- 
cause of  his  having  so  exercised  the  same,"  they 
shall  be  severely  punished ;  for  due  process  of  law  is 
not  included  among  these  rights  and  privileges. 

These  propositions  would  seem  to  be  clearly  de-  ^"fe""*^ 
ducible  from  the  decisions  of  the  Supreme  Court  as 
to  the  general  scope  of  the  Fourteenth  Amendment 
and  as  to  the  clause  therein  guaranteeing  the  equal 
protection  of  the  laws,  which  is  entirely  parallel 
with  that  securing  due  process  of  law.  But  recently 
the  Circuit  Court  of  the  United  States  in  Alabama 
has  reached  very  different  conclusions.'^  A  negro 
who  was  under  indictment  for  murder  in  the  courts 
of  Alabama  was  forcibly  taken  from  the  State  au- 
thorities and  murdered  by  a  mob.  Individuals  ac- 
cused of  taking  part  in  the  murder  were  arrested 
and  indicted  under  sections  5508  and  5509  of  the  Re- 
vised Statutes  of  the  United  States  for  conspiring 
to  deprive  a  citizen  of  rights  and  privileges  secured 
by  the  Constitution  and  laws  of  the  United  States. 
The  indictment  alleged  the  right  and  privilege  to  be 
tried  by  due  process  of  law.  The  court  upon  habeas 
corpus  brought  by  one  of  the  prisoners  held  the 
indictment  to  be  good  and  refused  to  discharge 
the  petitioner.  The  court  distinguished  the  nature  of 
the  right  arising  under  the  due  process  clause  of  the 
Fourteenth  Amendment  from  that  arising  under  the 

situation  is  lynched,  the  perpetrators  of  the  crime  may  be  indicted 
and  pimished  under  this  section.     Logan  V.  U.  S.,  144  U.  S.  263. 
6  Ex  p.  Riggins,  134  Fed.  Rep.  404. 


46  DUE  PROCESS  OF  LAW 

Chapter  equal  iDrotection  of  the  laws  clause  of  the  same 
amendment,  and  this  distinction  was  necessary  be- 
cause the  Supreme  Court  had  declared  unconstitu- 
tional an  Act  of  Congress  to  punish  a  conspiracy  to 
deprive  any  person  of  the  equal  protection  of  the 
lawsJ  The  equal  protection  of  the  laws  is  secured, 
it  is  said,  by  legislation  establishing  joroper  laws,  and 
*'no  act  of  a  private  citizen  can  defeat  the  enjoy- 
ment of  this  status ;"  ^  the  due  process  clause,  on  the 
other  hand,  makes  it  the  duty  of  the  State  to  render 
to  every  person  accused  of  crime  due  process  of  law, 
which  includes  not  only  proper  legislation  but  the 
orderly  and  undisturbed  working  of  the  machinery 
of  justice.  "Until  it  has  done  its  perfect  work,  the 
administration  of  due  process,  which  in  a  case  like 
this  can  not  be  enjoyed  except  by  the  regular  and  or- 
derly working  of  judicial  procedure,  is  not  afforded 
by  the  State."  ^  "The  very  words  of  the  Four- 
teenth Amendment  inevitably  utter  a  command  that 
the  State  shall  afford  due  process  to  the  citizen," 
and  the  right  or  privilege  so  guaranteed  "necessa- 
rily carries  with  it  and  includes  in  it  the  right,  priv- 
ilege or  immunity  to  enjoy  freedom,  exemption  from 
lawless  assault,  which  supervenes  between  the  State 
and  the  performance  of  its  duty,  and  by  such  violent 
interference  prevents  the  citizen  having,  when  the 
State  is  endeavoring  to  afford  it,  due  process  at  the 

TU.  S.  V.  Harris,  106  U,  S,  629,  holding  Rev.  Stat.  U.  S.,  §  5519, 
not  warranted  by  the  Constitution.     See  1  Fed.  Stat.  Annot.  805. 

8  A  modern  "  gunpowder  plot "  to  prevent  the  passage  of  a  law 
enforcing  equal  rights  would  s-eem  not  to  have  occurred  to  the 
court. 

6  Ex  p.  Riggins,  134  Fed.  Rep.  416-419. 


DUE  PROCESS  OF  LAW  47 


hands  of  the  State. "^     Two  stages  of  the  State's    chapter 


duty  are  distinguished:  the  first  involves  only  the 
passing  of  proper  laws  and  the  appointment  of  prop- 
er officers  to  execute  them,  and  is  owing  to  the 
whole  public;  the  second  stage  ''includes  the  obliga- 
tion, in  many  instances,  to  administer  judicial  pro- 
cedure in  the  individual  case,  and  is  due  to  a  par- 
ticular person."  TH'e^performance  by  the  State  of 
the  duty  4B9plied'  in  the  second  stage  can  only  be 
prevented  when  ^  some  proceeding  has  been  begun 
creating  the  d"dfy  toward  a  particular  person.  When 
that  stage  is  reached^  as  it  was  in  the  case  under  dis- 
cussion^t  is  "resistance  to  the  efforts  of  the  State's 
officers  to  perform  their  duty,  preventing  them  from 
doing  the  things  which  the  law  requires  them  to  do, 
which  defeats  the  State's  discharge  of  the  duty  of 
rendering  due  process  of  law,  and  thereby  assaults 
the  enjoyment  of  the  privilege  or  immunity  of  the 
citizen  to  have  due  process  at  the  hands  of  the 
State.  "2 

The  cardinal  fallacy,  if  there  be  a  fallacy,  in  this  J[^^S. 
reasoning,  is  finding  in  the  Fourteenth  Amendment 
any  positive  duty  on  the  part  of  the  State  to  ren- 
der due  process  to  any  one.  The  words  of  the 
amendment  are  guarded  and  negative:  *'Nor  shall 
any  State  deprive  any  person  of  life,"  etc.,  ''with- 
out due  process  of  law."    After  thus  finding  the 

1  134  Fed.  Rep.  412,  413. 

2 134  Fed.  Rep.  413,  414.  Ab  appeal  from  this  decision  was 
taken  to  the  United  States  Supreme  Court,  but  that  court,  holding 
simply  that  habeas  corpus  was  not  the  correct  way  under  the  cir- 
cumstances to  test  the  sufficiency  of  the  indictment,  remanded  the 
case  with  directions  to  quash  the  writ.  Riggins  v.  U.  S.,  199  U.  S. 
647. 


48  DUE  PROCESS  OF  LAW 

Chapter    guaranty  of  the  performance  of  a  positive  duty,  in 

■ '■ —  place  of  a  merely  negative  one,  on  the  part  of  the 

State,  the  other  steps  taken  by  the  court  are  com- 
paratively easy. 


CHAPTER  II. 

THE   ELEMENTS   OF   DUE   PROCESS. 

DEFINITIONS   COLLECTED  AND  THEIR  RELATIONS   SHOWN". 


A 


T  the  beginning  of  this  book,  due  process  of    Chapter 

law  or  law  of  the  land  was  said  to  imply  '■ — 

the  administration  of  equal  laws  according  to  SPwnceJ" 
established  rules,  not  violative  of  the  fundamental  "ai"  ^"^^ 
principles  of  private  right,  by  a  competent  tribu* 
nal  having  jurisdiction  of  the  case  and  proceed- 
ing upon  notice  and  hearing.    The  several  distinct 
elements  whose  presence  is  necessary  to  constitute 
due   process  as  thus  characterized  have   grouped 
themselves   around  that  phrase   at  various  times 
and  under  the  exigency  of  various  circumstances. 
Most  of  them  had  a  distinct  legal  history  before 
they   were   associated   in  one  of  their  aspects   as 
constituting  due   process.     As  one  or  another  of 
the  principles   involved   in  due  process  has  been 
prominent   in    the    minds   of   judges   and   jurists, 
definitions   of  the   ''law  of  the  land"  and  ''due 
process  of  law"  have  been  framed  wherein  specific 
aspects  of  the  conception  have  occupied  the  centre 
of  the  mental  picture.    Each  embodies  a  true  but 
partial  view   of  due  process.     Some   of   the  best 
known  of  these  are  given  here. 

One  of  the  most  famous  and  perhaps  the  most  Webster's 

-^  cefinition, 

oft  quoted  definition  is  that  of  Daniel  Webster  in  his  f^Pgen^r- 
speech  in  the  Dartmouth  College  Case.    His  argu-  ^^"^' 

4  49 


50  DUE  PROCESS  OF  LAW 

Chapter  ment  was  addressed  to  the  point  that  the  act  of  a 
State  legislature  which  took  away  rights  and  fran- 
chises acquired  by  the  college  in  virtue  of  a  prior 
charter,  was  violative  of  the  provision  of  the  New 
Hampshire  constitution  which  declares  that  no  one 
shall  be  deprived  of  "property,  privileges  or  im- 
munities but  by  the  judgment  of  his  peers  or  the  law 
of  the  land."  He  had  in  mind,  then,  a  legislative 
act,  partaking  of  the  character  of  a  judgment  in  that 
it  operated  on  rights  already  acquired,  and  was  di- 
rected against  a  single  corporation,  but  which  was 
passed  without  legal  opportunity  to  defend.  The 
definition  emphasized,  therefore,  the  necessity  of 
generality  or  equality  in  the  law  and  notice  and 
'-^  hearing.  He  said :  ''By  the  law  of  the  land  is  most 
clearly  intended  the  general  law ;  a  law  which  hears 
before  it  condemns;  which  proceeds  upon  inquiry, 
and  renders  judgment  only  after  trial.  The  mean- 
ing is  that  every  citizen  shall  hold  his  life,  liberty, 
property  and  immunities  under  the  protection  of  the 
general  rules  which  govern  society.  Everything 
which  may  pass  under  the  form  of  an  enactment  is 
not  therefore  to  be  considered  the  law  of  the  land. 
If  this  were  so,  acts  of  attainder,  bills  of  pains  and 
penalties,  acts  of  confiscation,  acts  reversing  judg- 
ments, and  acts  directly  transferring  one  man's 
estate  to  another,  legislative  judgments,  decrees,  and 
forfeitures,  in  all  possible  forms,  would  be  the  law  of 
the  land.  Such  a  strange  construction  would  render 
constitutional  provisions  of  the  highest  importance 
completely  inoperative  and  void.  It  would  tend 
directly  to  establish  the  union  of  all  powers  in  the 
legislature.    There  would  be  no  general  peimanent 


DUE  PROCESS  OF  LAW  51 

law  for  courts  to  administer  or  men  to  live  under."  ^    Chapter 

The  same  conception  of  general  law  combined  with  '■ — 

established  modes  of  procedure  appears  in  the  char- 
acterization of  due  process  in  a  case  contemporary 
with  the  last,  where  the  court  said:^  ''As  to  the  ^5^5"^,^?'^ 
words  from  Magna  Carta  incorporated  into  the  Oon-  ^°'^'  ^" 
stitution  of  Maryland,  after  volumes  spoken  and 
written  witli  a  view  to  their  exposition,  the  good 
sense  of  mankind  has  at  leng*th  settled  down  to  this, 
— that  they  were  intended  to  secure  the  individual 
from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  established  principles  of 
private  rights  and  distributive  justice. ' '  ^ 

When  the  point  at  issue  was  whether  in  the  J^p^^^Jf^'^^ 
enforcement  of  general  or  equal  laws,  methods  of  proc°e'durl^ 
procedure  which  protected  fundamental  rights  were 
observed,  descriptions  which  laid  stress  on  methods 
in  settled  use  were  framed.  Such  are:  "By  due 
13rocess  of  law  is  meant  one  [process]  which,  follow- 
ing the  forms  of  law,  is  appropriate  to  the  case  and 
just  to  the  parties  to  be  affected;"  ^  "due  process  of 

1  Dartmouth  College  V.  Woodward,  4  Wheat.  (U.  S.)  518.  The 
first  sentence  of  this  extract  is  quoted  in  Ex  p.  Wall,  107  U.  S.  289; 
Hovey  r.  Elliott,   167  U.  S.  409. 

2  Columbia  Bank  v.  Okely,  4  Wheat.  (U.  S.)  235,  per  Johnson,  J., 
quoted  in  U.  S.  r.  Cruikshank,  92  U.  S.  554;  Scott  v.  McNeal,  154 
U.  S.  45. 

3  "  Distributive  justice  "  is  one  of  the  divisions  of  justice  discussed 
by  the  old  writers  on  the  law  of  nature.  Pufendorf  defines  it  in 
effect  as  that  species  of  justice  which  is  exercised  by  one  who  gives 
to  each  member  of  society  the  rights  due  under  the  social  contract, 
i.  e.,  his  "  perfect  rights."  Law  of  Nature  and  Nations,  lib.  1,  c.  7,  §  9. 
The  idea  is  evidently  derived  from  the  definition  of  justice  with  which 
the  Institutes  of  Justinian  opens:  Justitia  est  consta7is  et  perpetua 
voluntas  jus  suum  cuique  tribuere.  Mr.  Justice  Matthews,  in  Hur- 
tado  V.  California,  110  U.  S.  516,  refers  to  "that  fundamental  maxim 
of  distributive  justice,  suum  cuique  tribuere." 

*Hagar  v.  Reclamation  Dist.  No.  108,  111  U.  S.  701. 


52 


DUE  PROCESS  OF  LAW 


Chapter 
II. 


Emphasis 
on  pres- 
ence of 
jurisdic- 
tion. 


Judicial 

process  not 
usually- 
essential. 


law  means  law  in  its  regular  course  of  administra- 
tion through  courts  of  justice."^  When  the  facts 
require  no  more,  it  is  defined  as  a  trial  according  to 
the  ''course,  mode  and  usages  of  the  common  law."  ^ 

As  applied  to  judicial  proceedings,  the  words 
''due  process  of  law"  have  been  held  to  mean  "a 
course  of  legal  proceedings  according  to  those  rules 
and  principles  which  have  been  established  in  our 
systems  of  jurisprudence  for  the  protection  and  en- 
forcement of  private  rights.  To  give  such  proceed- 
ings any  validity,  there  must  be  a  tribunal  compe- 
tent by  its  constitution — that  is,  by  the  law  of  its 
creation — to  pass  upon  the  subject-matter  of  the 
suit."^ 

But  neither  proceedings  according  to  common 
law,  nor  judicial  proceedings  in  a  formal  court  for 
the  trial  of  actions,  are  essential  to  due  process. 
"Though  it  generally  implies  and  includes  actor, 
reus,  judex,  regular  allegations,  opportunity  to  an- 
swer, and  a  trial  according  to  some  settled  course 
of  judicial  proceedings,  yet  this  is  not  universally 
true."  ^  Summary  administrative  process  has  from 
time  immemorial  been  sanctioned  in  the  collection  of 
taxes  and  in  other  cases  ;^  although  when  life  and 


6  2  Kent   Com.  13,  quoted  in  Caldwell  v.  Texas,  137  U.  S.  692. 

6 Hoke  V.  Henderson,  4  Dev.  L.  (15  N.  Car.)   1. 

TPennoyer  v.  Neff,  95  U.  S.  714,  per  Field,  J.,  quoted  in  Scott  v. 
McNeal,  154  U.  S.  46. 

8  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  (U.  S.)  272,  per 
Curtis,  J.  "  It  is  a  mistaken  idea  that  due  process  of  law  requires 
a  plenary  suit  and  a  trial  by  jury  in  all  cases  where  property  or 
personal  rights  are  involved."  Ex  p.  Wall,  107  U.  S.  265,  288. 
"Due  process  is  not  necessarily  judicial  process."  Reetz  v.  Michi- 
gan, 188  U.  S.  505,  507. 

» Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  (U.  S.)  272;  Wei- 
mer  v.  Bunbury,  30  Mich.  201. 


DUE  PROCESS  OF  LAW  53 

liberty  or  the  title  or  possession  of  property  are    Chapter 

involved,  due  process  has  been  said  to  require  that  

there  be  a  regular  course  of  judicial  proceedings,^ 
though  not  trial  by  jury.^ 

HOW  THE  PRESENCE  OF  DUE  PROCESS  IS   TESTED. 

Historical  Test  —  Positive  and  Inclusive. 

When  a  particular  law  or  procedure  is  drawn  in 
question  on  the  ground  that  it  is  wanting  in  due 
process  of  law,  upon  what  principle  is  its  validity  to 
be  tested?  The  first  inquiry  must  be,  of  course, 
whether  it  conflicts  with  any  provision  of  the  Con- 
stitution itself.  If  it  is  not  found  to  do  so,  we  must 
examine  the  connotation  of  the  phrase  at  the  time 
of  its  adoption  into  the  Constitution  of  the  United 
States.  For  this  purpose  we  must  determine 
**  those  settled  usages  and  modes  of  proceeding  ex- 
isting in  the  common  and  statute  law  of  England,  be- 
fore the  emigration  of  our  ancestors,  and  which  are 
shown  not  to  have  been  unsuited  to  their  civil  and 
political  condition  by  having  been  acted  on  by  them 
after  the  settlement  of  this  country."^  In  a  later 
case,  this  test  was  somewhat  enlarged,  the  court 
saying  that  that  was  due  process  of  law  which  was 
''in  substantial  accord  with  the  law  and  usage  in 
England  before  the  Declaration  of  Independence, 

iHagar  v.  Reclamation  Dist,  No.  108,  111  U.  S.  701.  This  state- 
ment requires  limitation.     See  infra,  p.  80. 

"^Ex  p.  Wall,  107  U.  S.  288,  the  court  saying:  "The  important 
right  of  personal  liberty  is  generally  determined  by  a  single  judge, 
on  a  writ  of  habeas  corpus,  using  affidavits  and  depositions  for 
proofs,  when  facts  are  to  be  established." 

3  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.   (U.  S.)  272. 


54 


DUE  PROCESS  OF  LAW 


Chapter 
II. 


Failure  of 

historical 

test. 


Progres- 
sive nature 
of  law. 


and  in  this  country  since  it  became  a  nation,  in 
similar  cases."  ^ 

If  a  particular  procedure  is  found  to  have  been 
sanctioned  by  English  practice  and  adopted  as  suited 
to  the  conditions  in  this  country,  it  measures  up  to 
the  requisites  of  due  process ;  but  if  the  inquiry  has 
only  negative  results,  we  must  not  immediately  con- 
clude that  due  process  is  wanting. 

For  the  test  proposed,  though  sufficient  for  the 
purposes  of  the  cases  in  which  it  was  announced,  is 
only  positive  and  inclusive,  not  negative  and  exclu- 
sive. To  hold  every  procedure  not  fulfilling  these 
requirements  to  be  a  deprivation  of  due  process, 
^' would  be  to  deny  every  quality  of  the  law  but  its 
age,  and  to  render  it  incapable  of  progress  or  im- 
provement. It  would  be  to  stamp  upon  our  juris- 
prudence the  unchangeableness  attributed  to  the 
laws  of  the  Medes  and  Persians.'"^  The  Supreme 
Court  ''has  not  failed  to  recognize  the  fact  that  the 
law  is,  to  a  certain  extent,  a  progressive  science; 
that  in  some  of  the  States,  methods  of  procedure 
which,  at  the  time  the  Constitution  was  adopted, 
were  deemed  essential  to  the  protection  and  safety 
of  the  people,  or  to  the  liberty  of  the  citizen,  have 
been  found  to  be  no  longer  necessary.  Even  before 
the  adoption  of  the  Constitution,  much  had  been 
done  toward  mitigating  the  severity  of  the  common 


*Lowe  V.  Kansas,  163  U.  S.  81.  For  other  cases  wherein  pro- 
ceedings sanctioned  by  immemorial  usage  have  been  held  to  be  "  due 
process  of  law,"  see  Ex  p.  Wall,  107  U.  S.  265;  Eilenbecker  v.  Dis- 
trict Ct.,  1.34  U.  S.  31.  Where  a  United  States  court  is  proceeding 
in  impaneling  a  jury  by  a  method  different  from  that  prescribed  by 
the  State  statute,  the  procedure  "  must  not  conflict  with  or  abridge 
the  right  as  it  exists  at  common  law."     Lewis  v.  U.  S.,  146  U.  S.  377. 

oHurtado  v.  California,  110  U.  S.  516. 


DUE  PROCESS  OF  LAW  55 

law,  particularly  in  the  administration  of  its  crimi-    Chapter 

nal  branch.     The  number  of  capital  crimes,  in  this  

country  at  least,  had  been  largely  decreased.  Trial 
by  ordeal  and  by  battle  had  never  existed  here,  and 
had  fallen  into  disuse  in  England.  The  earlier 
practice  of  the  common  law,  which  denied  the  benefit 
of  witnesses  to  a  person  accused  of  felony,  had  been 
abolished  by  statute,  though  so  far  as  it  deprived 
him  of  the  assistance  of  counsel  and  compulsory 
process  for  the  attendance  of  his  witnesses,  it  had 
not  been  changed  in  England.  But  to  the  credit  of 
her  American  colonies,  let  it  be  said  that  so  op- 
pressive a  doctrine  had  never  obtained  a  foothold 
there.  The  present  century  has  originated  legal  re- 
forms of  no  less  importance.  The  whole  fabric  of 
special  pleading  once  thought  to  be  necessary  to  the 
elimination  of  the  real  issue  between  the  parties  has 
crumbled  to  pieces.  The  ancient  tenures  of  real 
estate  have  been  largely  swept  away,  and  land  is 
now  transferred  almost  as  easily  and  cheaply  as 
personal  property.  Married  women  have  been 
emancipated  from  the  control  of  their  husbands, 
and  placed  upon  a  practical  equality  with  them, 
with  respect  to  the  acquisition,  possession  and 
transmission  of  property.  Imprisonment  for  debt 
has  been  abolished.  Exemptions  from  execution 
have  been  largely  added  to,  and  in  most  of  the  States 
homesteads  are  rendered  incapable  of  seizure  and 
sale  upon  forced  process.  Witnesses  are  no  longer 
incompetent  by  reason  of  interest,  even  though  they 
be  parties  to  the  litigation.  Indictments  have  been 
simplified,  and  an  indictment  for  the  most  serious 
of  crimes  is  now  the  simplest  of  all.    In  several  of 


56  DUE  PROCESS  OF  LAW 

Chapter    the  States  grand  juries,  formerly  the  only  safeguard 

'■ —  against  a  malicious  prosecution,  have  been  largely 

abolished;  and  in  others  the  rule  of  unanimity,  so 
far  as  applied  to  civil  cases,  has  given  way  to  ver- 
dicts by  a  three-fourths  majority."^ 

Intrinsic  Test  —  Both  Inclusive  and  Exclusive. 

In  view  of  all  these  instances,  say  the  courts,  the 
probability  of  further  changes  to  adapt  the  law  to 
new  conditions  of  society  must  be  recognized.  It 
is,  then,  of  the  utmost  importance  that  the  adoption 
of  such  future  changes  as  experience  shall  commend 
should  not  be  hampered  by  a  narrow  interpretation 
of  due  process.  Lest  these  results  should  follow,  a 
definition  of  due  process  which  should  be  complete 
both  in  what  it  includes  and  in  what  it  excludes  has 
never  been  attempted,  and  the  court  has  preferred 
the  wiser  and  more  conservative  course  of  ascertain- 
ing the  intent  and  application  of  the  phrase  "by 
the  gradual  process  of  judicial  inclusion  and  exclu- 
sion, as  the  cases  presented  for  decision  shall  re- 
quire, with  the  reasoning  on  which  such  decisions 
may  be  founded." '''  But  the  reasoning  of  the  cases 
must  recognize  some  test,  however  vague,  and  this 
test  is  declared  to  lie  in  the  fact  that  the  provision 
questioned  does  not  involve  an  infringement  of 
''certain  fundamental  rights,  which  that  system  of 
jurisprudence,  of  which  ours  is  a  derivative,  has 
always  recognized;"^  or  it  must  observe  ''those 

eHolden  v.  Hardy,  169  U.  S.  366. 

7  Davidson  v.  New  Orleans,  96  U.  S.  97;  Holden  v.  Hardy,   169 
U.  S.  366;  Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  563. 

8  Brown  v.   Levee   Comrs.,  60  Miss.   468,  quoted   in  Hurtado  V. 
California,  110  U.  S.  536. 


common 


DUE  PROCESS  OF  LAW  57 

general  rules  established  in  our  system  of  jurispru-    Chapter 

dence  for  the  security  of  private  rights ; "  '^  or  the  '■ — 

act  must  not  overstep  "the  inherent  and  reserved 
powers  of  the  State  exerted  within  the  limits  of 
those  fundamental  principles  of  liberty  and  justice 
which  lie  at  the  base  of  all  our  civil  and  political 
institutions."  ^ 

The  pursuit  of  the  ''fundamental  principles  of  fJsTor^' 
liberty  and  justice"  would  seem  to  throw  us  hope-  faw.' 
lessly  into  the  fields  of  speculation  cultivated  by 
writers  on  the  law  of  nature  and  the  nebulous  natu- 
ral  rights  of  man.  But  in  the  recognition  of  "fun- 
damental principles"  apart  from  constitutional  pro- 
visions, the  courts,  true  to  the  method  which  has 
built  up  the  common  law,  base  their  decisions  less 
on  deductive  reasoning  from  a  priori  assumptions, 
than  on  the  recognition  of  rights  which  have  been 
asserted  at  a  definite  time  and  place  against  particu- 
lar acts  of  tyranny  and  have  become  embedded  in 
our  law.  This  tendency  toward  cautious  conserva- 
tism is  well  illustrated  by  the  remarks  of  a  New 
Jersey  judge,  Mr.  Justice  Van  Syckel,  discussing  an 
analogous  point.  He  recognizes  but  two  classes  of 
rights  "for  which  immunity  against  the  encroach- 
ments of  the  lawmaker  can  be  claimed."  The  first 
includes  those  for  which  constitutional  protection  is 
especially  provided;  the  other  class,  not  shielded  by 
such  express  provision,  "is,  I  think,  limited  to  two  or 
three  instances."  They  are,  the  right  to  private 
property,  to  notice  and  a  hearing  before  judgment, 
and  the  principle  that  a  man  shall  not  be  made  a 

»Hagar  v.  Eeclamation  Dist.  No.  108,  111  U.  S.  701,  709. 
iHurtado  v.  California,  110  U.  S.  535. 


58  DUE  PROCESS  OF  LAW 

Chapter    judge  in  his  own  case.^    As  regards  the  last  point, 

the  United  States  Supreme  Court  has  held,  while 

distinguishing  the  case  from  that  of  a  judge  of  a 
court  acting  in  a  matter  in  which  he  was  personally 
interested,  that  the  qualification  or  disqualification 
for  interest  of  the  members  of  the  board  of  assess- 
ors for  a  municipal  tax  was  a  question  of  local  law 
for  the  decision  of  the  State  courts,  not  involving 
due  process  under  the  Fourteenth  Amendment.^ 
dameinT  Amoug  matters  held  fundamental  and  essential 

requisites,  -g  ^^^  preseucc  of  notice  and  hearing  which  is  of 
the  very  essence  of  due  process."*  The  possession 
of  jurisdiction  by  the  tribunal  passing  upon  rights 
of  life,  liberty,  or  property,'  the  necessity  of  com- 
pensation when  property  is  taken  for  a  public  pur- 
pose,® have  each  been  recognized  as  fundamental  in 
due  process  under  the  Fourteenth  Amendment; 
while  the  right  of  a  person  accused  of  felony  to  be 
present  in  the  trial  court  during  the  trial  is  essen- 
tial at  least  to  due  process  under  the  Fifth  Amend- 
ments But  whether  exemption  from  double  jeop- 
ardy, or  the  right  not  to  be  compelled  to  give  evi- 
dence against  one's  self,^  is  included  in  this  category 

2  Moore  v.  State,  43  X.  J.  L.  203,  243,  244.     These  remarks  are 
found  in  a  dissenting  opinion. 

3  Lent  V.  Tillson,  140  U.  S.  316;  Hibben  i\  Smith,  191  U.S.  310. 
Making  an    interested   party   judge   was   taken   as   the   extreme 

instance  of  an  act  contrary  to  natural  right  in  old  cases.  "  Even  an 
Act  of  Parliament  made  against  natural  equity,  as  to  make  a  man 
judge  in  his  own  case,  is  void  in  itself."  Day  r.  Savadge,  Hob.  87. 
See  also  Bonham's  Case,  8  Coke  118a;  Smith  v.  Hancock,  Style  138. 

4  See  infra,  p.  73. 
6  See  infra,  p.  85. 

6  See  infra,  p.  278. 

7  See  infra,  p.  165. 

8  Adams  v.  New  York,  192  U.  S.  585. 


DUE  PROCESS  OF  LAW  59 

is  not  determined.     And  the  ajrantins:  or  withhold-    Chapter 

II 
mg  of  rights  once  considered  peculiarly  fundamental  '■ — 

has  been  held  to  be  wholly  within  the  domain  of  the 

States.9 

Finally  the  subject-matter  of  the  case  and  the  |S*" 
nature  of  the  proceeding  in  which  due  process  of  iTrTg.""^' 
law  is  involved  must  always  be  considered  in  deter- 
mining whether  the  taking  is  warranted  by  constitu- 
tional provision.^  The  requirement  of  due  process 
as  affecting  judicial  proceedings  has  been  declared 
to  be  well  settled,  however  undetermined  the  mean- 
ing may  be  in  other  connections. ^ 

Where  it  is  sought  to  justify  the  taking  as  an  JJlS""' 
exercise  of  the  sovereignty  of  the  State,  especially  *''°"*^" 
may  the  requirements  of  due  process  be  modified. 
''In  judging  what  is  'due  process  of  law,'  "  said  Mr. 
Justice  Bradley,^  "respect  must  be  had  to  the 
cause  and  object  of  the  taking,  whether  under  the 
taxing  power,  the  power  of  eminent  domain,  or  the 
power  of  assessment  for  local  improvements,  or 
none  of  these;  and,  if  found  to  be  suitable  or  ad- 
missible in  the  special  case,  it  will  be  adjudged  to 
be  'due  process  of  law;'  but,  if  found  to  be  arbi- 
trary, oppressive,  and  unjust,  it  may  be  declared  to 
be  not  'due  process  of  law.'  "  In  a  later  case,  the 
same  judge,  speaking  for  the  court,  said:  "The 
process  of  taxation  does  not  require  the  same  kind 
of  notice  as  is  required  in  a  suit  at  law,  or  even  in 

9  Such  are  the  right  to  accusation  by  a  grand  jury,  Hurtado  v. 
California,  110  U.  S.  575;  and  the  right  to  trial  by  jury  itself,  Max- 
well V.  Dow,  176  U.  S.  581. 

1  Ex  p.  Wall,  107  U.  S.  288. 

2  Pennoyer  v.  Neflf,  95  U.  S.  714. 

s  Concurring  opinion  in  Davidson  v.  New  Orleans.  96  U.  S.  97. 


60  DUE  PROCESS  OF  LAW 

Chapter    proceedings  for  taking  private  property  under  the 

power  of  eminent  domain.    It  involves  no  violation  of 

due  process  of  law,  when  it  is  executed  according  to 
customary  forms  and  established  usages,  or  in  sub- 
ordination to  the  principles  which  underlie  them."  ^ 
The  general  principle  is  that  when  the  state  is  acting 
in  its  sovereign  capacity,  its  acts  are  for  the  good 
of  the  whole  community,  and  private  rights  and  in- 
terests must  yield  to  this  paramount  object.  But 
to  this  matter  we  shall  return  at  a  later  stage  of 
the  discussion. 

It  is  necessary  now  to  examine  in  detail  some  of 
the  leading  elements  of  due  process.  The  require- 
ment, first,  of  general  and  equal  laws;  second,  of 
notice  and  hearing;  and,  third,  of  the  presence  of 
jurisdiction,  will  be  taken  up. 

Equality  and  Generality  of  the  Law. 
There-  The  conceptiou  of  law  is  opposed  to  all  merely 

quirements  -^  -^  -^  ^ 

fxi\a\ncd.  arbitrary  or  capricious  action  on  the  part  of  the 
state  depriving  individuals  of  life,  liberty,  or  prop- 
erty. Early  in  English  history  an  appeal  was  made 
to  this  conception  in  petitioning  Parliament  for  a 
reversal  of  a  bill  of  attainder,  but,  according  to  the 
British  Constitution,  the  authority  of  Parliament  is 
absolute,  and  the  idea  of  the  intrinsic  necessity  of 
equality  or  generality  could  not  be  developed  as 
applied  to  acts  of  Parliament,  although  in  substance 
it  was  employed  to  restrain  the  quasi-legislative 
activity  of  municipal  bodies. 

Law  must  Under   the   American    theory   of    constitutional 

operate  on 

all  alike.      govcmment,  m  which  constitutions  are  a  restraint 

4  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232. 


DUE  PROCESS  OF  I^WV  61 


II. 


even  on  the  legislature,  the  idea  has  had  a  more  fruit-  chapter 
ful  development.  Purely  arbitrary  decrees  or  en- 
actments of  the  legislature  directed  against  indi- 
viduals or  classes  are  held  not  to  be  ''the  law  of 
the  land,"  or  to  conform  to  ''due  process  of  law." 
The  conception  comes  clearly  to  the  front  in  Mr. 
Webster's  definition  of  "law  of  the  land,"  which 
has  been  already  quoted,  and  it  has  been  frequently 
repeated  by  the  courts.  "Due  process  of  law  within 
the  meaning  of  the  [Fourteenth]  Amendment,"  said 
the  Federal  Supreme  Court,  "is  secured  if  the  laws 
operate  on  all  alike,  and  do  not  subject  the  indi- 
vidual to  an  arbitrary  exercise  of  the  powers  of 
government."  6  ''By  the  law  of  the  land,"  said  the 
Michigan  court,  "we  understand  laws  that  are  gen- 
eral in  their  operation,  and  that  affect  the  rights 
of  all  alike,  and  not  a  special  act  of  the  legislature, 
passed  to  afflect  the  rights  of  an  individual  against 
his  will  and  in  a  way  in  which  the  same  rights  of 
other  persons  are  not  affected  by  existing  laws. 
Such  an  act,  unless  expressly  authorized  by  the  Con- 
stitution, or  clearly  coming  within  the  general  scope 
of  legislative  power,  would  be  in  conflict  with  this 
part  of  the  Constitution,  and  for  that  reason,  if  no 
other,  be  void. "  "^  "  The  clause  '  law  of  the  land, '  ' ' 
said  Mr.  Justice  Catron,  when  a  member  of  the  Su- 
preme Court  of  Tennessee,  "means  a  general  and 
public  law,  equally  binding  upon  every  member  of 

eGiozza  v.  Turaan,  148  U.  S.  657,  662.  See  also  Yick  Wo  v. 
Hopkins,  118  U.  S.  356;  Dent  V.  West  Virginia,  129  U.  S.  114;  Leeper 
V.  Texas,  139  U.  S.  462;  Yesler  v.  Washington  Harbor  Line  Com'rs, 
146  U.  S.  646;  Dunean  v.  Missouri,  152  U.  S.  377;  Orr  v.  Oilman, 
183  U.  S.  278,  287. 

7  Sears  v.  Cottrell,  5  Mich.  251.  See  also  Millett  v.  People,  117 
ni.  294,  57  Am.  Rep.  869. 


62  DUE  PROCESS  OF  LAW 

Chapter    ^he  Community."^    In  a  later  case,  the  same  court, 

in  order  to  bring  out  the  constitutionality  of  legis- 
lative classification,  preferred  to  define  the  phrase 
as  meaning  a  law  ''which  embraces  all  persons  who 
are  or  may  come  into  like  situation  and  circum- 
stances."^ 

o'naw"^  But  the  necessity  of  emphasis  on  this  aspect  of 

due  process  is  less  necessary  because  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United 
States,  and  many  State  constitutions  as  well,  con- 
tain clauses  especially  directed  against  legislation 
lacking  the  character  of  generality.  The  Federal 
Constitution  provides  specifically  for  the  equal  pro- 
tection of  the  laws,  and  many  State  constitutions 
carefully  limit  the  power  of  the  legislature  to  pass 
local  or  special  laws.^  Kestraints  on  arbitrary  leg- 
islation may  result  from  the  clauses  in  some  consti- 
tutions prohibiting  "exclusive  or  separate  emolu- 
ments" and  ''perpetuities  and  monopolies. "^ 

ciassifica-  The  requirement  does  not,  in  the  absence  of  some 

tion  per- 
mitted,       specific  constitutional  provision,  prevent  the  legis- 
lature from  passing  a  law  which  is  confined  in  its 
operation  to  a  particular  locality,^  or  which  embraces 

sVanzant  i\  Waddel,  2  Yerg.  (Tenn.)   260. 

9  Stratton  r.  Morris,  89  Tenn.  497,  citing  many  earjier  cases  from 
the  same  court.  This  is  the  same  test  adopted  by  the  federal  Su- 
preme Court  for  conformity  with  the  "  equal  protection  of  the  laws  " 
clause  of  the  Fourteenth  Amendment;  viz.,  that  the  statute  be  gen- 
eral, embracing  all  persons  under  substantially  like  circumstances, 
and  not  an  arbitrary  exercise  of  power.  Jones  v.  Brim,  16.5  U.  S. 
180;  Lowe  V.  Kansas,  16.3  U.  S.  81;  Duncan  V.  Missouri,  152  U.  S. 
377;  Hayes  v.  Missouri,  120  U.  S.  68. 

1  See,  for  instance,  Waite  r.  Santa  Cruz,  184  U.  S.  302,  constru- 
ing the  constitution  of  California. 

2  State  V.  Moore,   104  N.  Car.  714. 

3  State  V.  Moore,  104  N.  Car.  714. 


DUE  PROCESS  OF  LAW  63 

the  whole  of  a  class,  however  few  the  individuals    chapter 

who  compose  it  may  be,  provided  the  classification  

of  persons  upon  which  the  law  rests  is  natural  and 
not  founded  on  arbitrary  caprice,^  or,  in  more  accu- 
rate language  perhaps,  provided  the  ostensible  pur- 
pose of  the  law  is  not  seen  to  be  a  mere  cover  for 
carrying  out  purposes  having  no  relation  to  the 
classification  adopted.^  Thus  it  is  no  objection  to 
the  validity  of  a  law  providing  for  the  taxation  of 
railroads,  that  the  method  of  assessing  railroads 
diifers  from  the  method  provided  for  all  other  prop- 
erty, in  that  railroads  are  assessed  by  a  State  board 
while  all  other  property  in  the  State  is  assessed  by 
county  ofiicials.^  Nor  is  a  statute  regulating  rail- 
road rates  wanting  in  due  process  of  law  because  it 
classifies  the  rates  which  the  railroads  may  charge 
on  some  natural  basis.  ''Whether  the  classification 
shall  be  according  to  the  amount  of  passengers  and 
freight  carried,  or  of  gross  or  net  earnings,  during 
a  previous  year,  or  according  to  the  simpler  or 
more  constant  test  of  the  length  of  the  line  of  the 
railroad,  is  a  matter  within  the  discretion  of  the 
legislature.""^  That  the  regulation  adopted  shall 
operate  uniformly  on  each  class  is  all  that  the  con- 
stitution requires.^  Nor  does  a  law  providing  that 
the  possession  of  policy  slips  "by  any  person  other 
than  a  public  officer"  shall  be  prima  facie  evidence 

*Budd  V.  state,  3  Humph.  (Tenn.)  483,  39  Am.  Dec.  189;  Strat- 
ton  V.  Morris,  89  Tenn.  497,  521. 

5  Lochner  v.  New  York,  198  U.  S.  45. 

estate  Railroad  Tax  Cases,  92  U.  S.  575;  Kentucky  Railroad 
Tax  Cases,  115  U.  S.  321;  Pittsburgh,  etc.,  R.  Co.  v.  Backus,  154 
U.  S.  421. 

TDow  r.  Beidelman,  125  U.  S.  680,  691. 

s  Chicago,  etc.,  R.  Co.  v.  Iowa,  94  U.  S.  155. 


64  DUE  PROCESS  OF  LAW 


Chapter    that  the  possessor  has  them  knowingly,  become  in 


valid  by  reason  of  the  exception  of  public  ofiQcers, 
since  the  exception  clearly  applies  to  those  public 
officers  only  who  have  possession  in  the  performance 
of  their  public  duties.^ 

Confiscatory  Legislation. 

Extreme  instances  of  laws  lacking  in  generality 
are  acts  which  forfeit  or  confiscate  the  life,  liberty, 
or  property  of  a  private  citizen,  or  citizens,  by  the 
mere  edict  of  the  legislature.  **In  these  cases," 
said  the  United  States  Supreme  Court,  ''the  legisla- 
tive body,  in  addition  to  its  legitimate  functions,  ex- 
ercises the  powers  and  office  of  judge;  it  assumes, 
in  the  language  of  the  text-books,  judicial  magis- 
tracy; it  pronounces  upon  the  guilt  of  the  party, 
without  any  of  the  forms  or  safeguards  of  trial ;  it 
determines  the  sufficiency  of  the  proofs  produced, 
whether  conformable  to  the  rules  of  e\ddence  or 
otherwise ;  and  it  fixes  the  degree  of  punishment  in 
accordance  with  its  own  notions  of  the  enormity  of 
the  offense."  ^ 
Bills  of  Acts  of  attainder,  bills  of  pains  and  penalties, 

etc.-^his-  which  are  a  species  of  acts  of  attainder  inflicting 
punishment  less  than  death,^  acts  of  confiscation, 
and  the  like,  all  fall  within  this  prohibition.  The 
feeling  that  such  proceedings  were  contrary  to  the 
law  of  the  land,  although  in  a  technical  sense  legal, 
may  be  traced  to  the  fourteenth  century  when  the 

» Adams  v.  New  York,  192  U.  S.  585,  afflrming  170  N.  Y.  351. 
iCiimmings  r.   Missouri.   4  Wall.    (U.  S.)    277.   32.S. 
zCumminsrs  v.  Missouri,  4  Wall.  (U.  S.)  277,  323;  Doe  v.  Buford, 
1  Dana  (Ky.)  510. 


tory. 


DUE  PROCESS  OF  LAW  65 


conception  of  ''law  of  the  land"  was   taking  its    Chapter 


modern  meaning.     In  the  reign  of  Edward  II,  the 
exile  and  disinheritance  of  the  Despencers  passed 
by  an  assembly  of  magnates  hostile  to  the  Crown 
and  not  properly  smnmoned  as  a  Parliament,  was 
reversed  in  a  later  Parliament  on  the  ground  that 
the   "said   award  was   made  without   calling  them 
[the  Despencers]  to  answer,  and  without  the  assent 
of  the  prelates,  which  are  peers  of  the  realm  in  Par- 
liament, and  against  the  Great  Charter  of  the  fran- 
chises of  England,  which  says  no  freeman  shall  be 
banished   or  other  way  destroyed,   but  by  lawful 
judgment  of  his  peers  or  the  law  of  the  land,  and 
for  that  they  were  not  called  in  court  to  make  an- 
swer, and  for  these  errors  and  for  that  the  causes 
in  the  said  award  were  not  duly  proved. "  ^     On 
similar  grounds  were  placed  the  act  annulling  the 
sentence  against  the  Earl  of  Arundel  in  1330 ;  ^  and 
the   supplementary  statute  of  1354,   enacted  on  a 
petition  which  states  that  there  is  no  record  or  evi- 
dence of  any  just  cause  wherefore  the  Earl  of  Arun- 
del ought  to  have  been  destroyed  or  put  to  death 
''without  judgment  and  due  process  of  law  {sam 
juggement  et  due  process  de  lei).''''^     In  the  same 
year  the  attainder  of  Roger,  Earl  of  Mortimer,  was 
reversed  upon  the  petition  of  his  heir,  who  alleged 
that  the  record  of  his  attainder  was  "erroneous  and 
defective  at  all  points,  especially  in  so  far  as  the 

3  Proceedingrs  against  the  Despencers,  1  How.  St.  Tr.  33. 

4  The  Earl's  son  petitions  that  it  may  please  our  lord  the  King 
to  consider  how  Esmon,  his  father.  Earl  of  Arundel,  was  taken, 
imprisoned,  and  put  to  death,  and  his  lands  and  chattels  forfeited 
"against  the  law  and  custom  of  the  country."  2  Rot.  Pari.  55,  4 
Edw.  ITI,  A.  D.  1330. 

5  2  Rot.  Pari.  256,  257,  28  Edw.  Ill,  A.  D.  1354. 
5 


Q6  DUE  PROCESS  OF  LAW 

Chapter    g^id  earl  was  put  to  death  and  disinlierited  without 

any  accusation  and  without  being  put  to  judgment 

or  to  answer  {sanz  estre  mesne  en  juggement  ou  en 
respons).''^  ^  These  were,  however,  only  instances  of 
attainders  reversed  when  the  opposite  party  came 
into  power.  Bills  of  attainder  passed  with  apparent 
or  real  regularity  were  common  enough  in  the  mid- 
dle ages,"^  and  were  sometimes  passed  even  after  the 
death  of  the  person  attainted.^ 
Against  Henry  VIII  is  said  to  have  been  the  first  sover- 

persons  •^ 

sfand  trial,  elgu  to  lutroducc  the  practice  of  bills  of  attainder 
without  citation  or  opportunity  to  defend  against 
persons  who  were  ready  to  answer  in  a  regular  court 
of  justice.  The  judges  who  were  consulted  on  the 
legality  of  such  an  act,  answered  at  first  that  it  was 
a  dangerous  question,  that  Parliament  ought  to  give 
an  example  of  justice  to  inferior  courts,  that 
no  inferior  courts  could  act  in  that  arbitrary  way, 
and  they  thought  no  Parliament  ever  would.  But, 
on  further  pressure,  they  answered  that  if  a  bill  of 
attainder  were  so  passed,  its  validity  could  not  be 
brought  in  question  at  law.  Accordingly  proceed- 
ings were  had  in  this  manner  against  the  Countess 
of  Salisbury  and  others  less  distinguished.^    But 

6  2  Rot.  Pari.  256,  28  Edw.  Ill,  A.  D.  1354. 

7  Attainders  of  treason  in  the  fourteenth  eentiiry  were  an  ordinary 
device  of  the  dominant  faction  to  secure  the  forfeiture  of  estates. 
1  Pike,  Hist.  Cr.  in  Eng.  228. 

8  See  the  oases  of  the  Duke  of  Glouopster  in  1397,  1  How.  St.  Tr. 
130,  and  of  Cromwell  and  other  regicides  after  the  Restoration.  1 
Pike,  Hist.  Cr.  in  Eng.  406.  "  The  most  remarkable  instance  of  a 
mediaeval  punishment  reappearing  almost  within  living  memory  is 
the  Act  of  Attainder  passed  [by  the  Irish  Parliament]  in  1798 
against  Lord  Edward  Fitzgerald  and  others  after  death."  2  Pike, 
Hist.  Cr.  in  Eng.  380. 

»4  Reeves,  Hist.  Eng.  Law   (Am.  ed.,  1880)   555,  550.     See  also 


DUE  PROCESS  OF  LAW  67 

opposition   to   the   injustice   of  acts    of   attainder    Chapter 

was  beginning  to  affect  public  opinion,  and  there  '■ — 

were  protests  and  much  hesitation  in  the  House  of 
Commons  upon  the  passage  of  the  bill  against  the 
Lord  Admiral  Seymour  in  1549.^  A  century  and  a 
half  later,  in  the  case  of  Sir  John  Fenwick,  the  act 
of  attainder  was  passed  by  a  majority  of  only 
six  in  the  Lords  and  thirty-three  in  the  House,  and 
against  very  spirited  opposition  in  both  bodies.^ 
Such  judicial  legislation  continued  to  be  resorted  to 
whenever  the  occasion  seemed  to  require  a  departure 
from  the  usual  and  orderly  forms  of  administering 
justice  through  the  courts.^  Sentences  of  this  char- 
acter are,  however,  utterly  opposed  to  the  modem 
spirit  of  justice  and  gradually  ceased  to  be  resorted 
to.  ''The  bill  [of  pains  and  penalties]  against 
Queen  Caroline,"  says  Sir  J.  F.  Stephen,  ''will  prob- 
ably long  continue  to  be  referred  to  as  the  last  in- 
stance of  such  legislation. ' '  ^ 

Legislation  of  this  character,  as  well  as  ex  post  Spedai 

'  '-  constitu- 

facto   laws   generally,   is   by   special  constitutional  hibiuons?" 
provision  placed  beyond  the  competency  of  both  the 

1  How.  St,  Tt.  481,  extract  from  Burnet's  Hist,  Reformation.  The 
illegality  of  these  bills  was  argued  again  on  the  act  of  attainder 
against  Sir  John  Fenwick  in  1696,     13  How,  St,  Tr,  633, 

1  1  How  St.  Tr,  494,  and  2  Burnet's  Reform,  99,  quoted  in  note. 

2  13  How,  St.  Tr.  538,  A,  D.  1696.  This  method  of  procedure 
was  resorted  to  because  one  of  the  two  witnesses,  necessary  to  con- 
vict of  treason,  having  disappeared,  escape  was  inevitable  on  an 
ordinary  prosecution,     2  Pike,  Hist.  Cr.  in  Eng.  325. 

3  1  Steph.  Hist.  Cr.  Law,  161;  Pike,  Hist.  Cr.  in  Eng.,  passim; 
4  Reeves  Hist.  Eng.  Law  (Am.  ed.,  1880)  554;  Cummings  v.  Missouri, 
4  Wall.  (U.  S.)  277,  quoting  Story  on  the  Constitution,  §  1344.  A 
notable  instance  of  a  bill  of  pains  and  penalties  was  the  act  against 
Bishop  Atterbury  in  1723.  16  How.  St.  Tr,  323.  The  bill  is  at  p. 
644. 

4  1  Steph.  Hist.  Cr.  Law,  161, 


68  DUE  PROCESS  OF  LAW 

Chapter    national^  and  State  legislatures,*^  by  clauses  in  the 

Federal  Constitution;   and  State  constitutions  limit 

the  power  of  the  legislatures  by  like  provisions." 
fory^dvTi  Confiscatoiy  legislation  of  a  civil  character  is  as 

legislation,  jjjy^,}^  opposcd  to  duc  proccss  of  law  as  judgments 
of  the  legislature  imposing  penalties  for  crime.  ' '  A 
statute  which  declared  in  terms  and  without  more 
that  the  full  and  exclusive  title  of  a  described  piece 
of  land,  which  is  now  in  A,  shall  be  and  is  hereby 
vested  in  B,  would,  if  effectual,  deprive  A  of  his 
property  without  due  j^rocess  of  law  within  the 
meaning  of  the  constitutional  provision."®  For 
**  where  rights  of  property  are  admitted  to  exist,  the 
legislature  can  not  say  they  shall  exist  no  longer."^ 
The  prohibition  equally  extends  to  a  taking  by 
the  State  for  a  public  purpose,  unless  just  compen- 
sation is  made  to  the  owner.^ 

Confusing  Functions  of  Different  Departments 
of  Government. 

One  of  the  objections  urged  against  arbitrary 
and  confiscatory  legislation  is,  as  has   been  seen, 

5  Const.  U.  S.,  Art.  I,  §  9,  H  3 ;  8  Fed.  Stat.  Annot.  695. 

6  Const.  U.  S.,  Art.  I,  §  10,  H  1;  8  Fed.  Stat.  Annot.  713. 

7  See  12  Am.  &  Eng.  Encyc.  Law  (2d  ed.)  527,  and  note  6. 

8  Davidson  v.  New  Orleans,  96  U.  S.  97,  102;  Missouri  Pac.  R. 
Co.  V.  Nebraska,  164  U.  S.  403,  417;  Chicago,  etc.,  R.  Co.  v.  Chicago, 
166  U.  S.  226,  236;  Zeigler  v.  South,  etc.,  Alabama  R.  Co.,  58  Ala. 
594;  Davis  r.  State,  68  Ala.  58,  63,  44  Am.  Rep.  128;  Wynehamer 
V.  People,  13  N.  Y.  378;  Taylor  v.  Porter,  4  Hill  (N.  Y.)  145; 
Hoke  V.  Henderson,  4  Dev.  ( 15  N.  Car. )  15 ;  Norman  v.  Heist,  5 
W.  &  S.   (Pa.)    171;  Boggs  V.  Com.,  76  Va.  989. 

»  Wynehamer  r.  People,  13  N.  Y.  378,  393,  per  Comstock,  J. 

1  Davidson  v.  New  Orleans,  96  U.  S.  .97,  per  Bradley,  J.,  concur- 
ring; Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226,  236.  And  see 
imfra,  p.  278. 


DUE  PROCESS  OF  LAW  69 

that  it  obliterates  those  lines  of  separation  between    Chapter 

the  different  departments  of  government  whose  ex-  '■ — 

istence  is  firmly  embedded  in  the  substance  of  our 
institutions,^  and  forms,  according  to  publicists  and 
judges,  so  important  a  safeguard  to  the  rights  of 
the  citizen.^ 

The  constitutions  of  the  Federal  Union  and  of  ^emJ^of 
nearly  all  the  separate  States  declare  that  the  pow-  men""" 
ers  of  the  government  shall  be  distributed  among 
three  branches;  the  legislative,  the  executive,  and 
the  judicial.^  The  legislative  department  makes, 
the  executive  executes,  and  the  judiciary  construes 
the  law.^  But  though  the  idea  which  lies  at  the 
basis  of  the  division  is  clear,  and  the  importance  of 
preserving  broad  lines  of  separation  is  admitted  by 
the  courts,  the  application  of  the  principle  in  detail 
is  difficult.^ 

The    functions    of   government    are    necessarily  J/J^"'*^ 
complex,  and  its  activities  may  assume  a  doubtful  "'^''^^^'°''- 
aspect  and  partake  to  such  an  extent  of  the  duties 
of  more  than  one  department  as  to  render  proper 
classification,  in  the  absence  of  distinct  constitu- 

2  The  American  constitutions  are  supposed  to  have  derived  the 
principle  from  Montesquieu.  Crane  V.  Meginnis,  1  Gill  &  J.  (Md.) 
476,  19  Am.  Dee.  237.     See  Montesquieu,  Spirit  of  Laws,  1.  11,  c.  6. 

3  Some  recent  writers  regard  the  theory  of  the  separation  of 
powers  as  discredited.  See  Goodnow,  Comparative  Administrative 
Law,  20.  But  it  would  not  seem  to  affect  the  practical  value  of  the 
principle  that  lines  of  demarkation  between  the  different  branches 
of  government  do  not  admit  of  being  drawn  with  mathematical  ex- 
actness, or  that  the  separation  as  actually  provided  in  various  con- 
stitutions must  have  more  or  less  of  an  arbitrary  nature  about  it. 

4  See  Bondy,  The  Separation  of  Governmental  Pawers  (Columbia 
University  Studies)    17. 

sWayman  v.  Southard,  10  Wheat.  (U.  S.)  1,  46. 
6  See  Kilbourn  v.  Thompson,  103  U.  S.  168;  Story  on  Const.,  5th 
ed.,  393,  395;   Bondy,  Sep.  Gov.  Powers,  69. 


70  DUE  PROCESS  OF  LAW 

Chapter    tional  provisions,  largely  a  matter  of  the  point  of 

-; view  from  which  the  particular  activity  exercised 

is  observed.  As  has  been  well  said,  "While  it  is 
true  that  the  executive,  legislative  and  supreme  judi- 
cial powers  of  the  government  ought  to  be  forever 
separate  and  distinct,  it  is  also  true  that  the  science 
of  government  is  a  practical  one;  therefore,  while 
each  [department]  should  firmly  maintain  the  pow- 
ers belonging  to  it,  it  can  not  be  forgotten  that  the 
three  coordinate  parts  constitute  one  brotherhood, 
whose  common  trust  requires  a  mutual  toleration  of 
the  occupancy  of  what  seems  to  be  a  'common  be- 
cause of  vicinage, '  bordering  the  domains  of  each."  ^ 
^f"cou?fs  -^^  ^^^  presence  of  such  a  state  of  things  the 

p°robiem.  courts  arc  reluctant  to  pronounce  acts  of  the  legis- 
lative department  void,  because  it  may  have  as- 
sumed, in  their  opinion,  powers  belonging  to  another 
branch,  or  have  confused  the  functions  of  the  execu- 
tive and  the  judiciary.^  Yet  in  some  cases  stat- 
utes conferring  on  one  department  of  government 
powers  which  belong  to  another  have  been  pro- 
nounced void  as  denying  due  process  of  law.^*  Thus 
where  a  statute  declared  that  it  should  be  the  duty 
of  every  landowner  to  clean  out  streams  flowing 
through  his  land,  and  that  in  case  of  failure  to  do 
so,  the  tax  assessor  should  note  the  fact  and  the 
county  clerk  should,  thereupon,  add  a  specified 
drainage  tax  to  the  assessment  of  such  landowner, 
it  was  held  that  the  statute  was  void  as  conferring 
judicial  powers  on  ministerial  officers  and  amount- 

7  Brown  v.  Turner,  70  N.  Car.   102. 

sWayman  V.  Southard.  10  Wheat.   (U.  S.)    1,  46. 

8*  See  infra,  pp.  1G4,  3G5  et  seq. 


DUE  PROCESS  OF  LAW  71 

ing  to  a  taxing  of  property  without  due  process  of    Chapter 

law.^    A  New  York  court  has  held  that  a  statute  

in  which  the  legislature  assumed  judicial  powers 
and  took  from  the  judges  discretion  in  certain  cases 
amounted  to  a  denial  of  due  process.^ 

While  the  several  States  started  with  the  same  J^anS^ 
theory  of  the  division  of  powers,  constitutional  pro-  decision. 
visions  and  the  natural  growth  in  a  living  body  of 
law  have  led  to  differences  in  the  practical  distribu- 
tion of  duties  among  the  departments  of  the  govern- 
ment. In  each  State  the  location  of  lines  of  de- 
markation  between  the  three  powers  must  depend 
upon  its  own  constitution  and  laws  as  interpreted  by 
its  highest  court.^  The  Federal  Supreme  Court 
has,  therefore,  held  the  separation  of  powers  to  be 
in  general  a  matter  of  local  law  not  cognizable  under 
the  due  process  clause  of  the  Fourteenth  Amend- 
ment. **  Whether  the  legislative,  executive,  and 
judicial  powers  [of  a  State],"  said  the  Supreme 
Court,  ''shall  be  kept  altogether  distinct  and  sepa- 
rate, or  whether  persons  or  collections  of  persons 
belonging  to  one  department  may  in  respect  to  some 
matters  exert  powers  which,  strictly  sj^eaking,  per- 
tain to  another  department  of  government,  is  for 
the  determination  of  the  State.  And  its  determina- 
tion one  way  or  the  other  cannot  be  an  element  in 
the  inquiry,  whether  the  due  process  of  law  pre- 
scribed by  the  Fourteenth  Amendment  has  been  re- 

9  Cleveland,  etc.,  R.  Co.  v.  People,  212  111.  638.  This  holding, 
which  is  undoubtedly  correct,  would  perhaps  have  been  better  put 
on  the  ground  that  the  statute  provided  no  hearing  for  the  land- 
owner. 

iRiglander  V.  Star  Co.,  98  N.  Y.  App.  Div.  101. 

2  See  People  v.  Hurlbut,  24  Mich.  63. 


72 


DUE  PROCESS  OF  LAW 


Chapter 
II. 


Judicial 
"function- 
of  execu- 
tive offi- 


Presump- 
tion  as  to 
discharge 
of  duties. 


spected  by  the  State  or  its  representatives,  when 
dealing  with  matters  involving  life  or  liberty. ' '  ^ 

The  functions  committed  to  executive  officers  by 
the  laws  may  involve  decisions  of  questions  of  fact 
which  concern  the  private  rights  of  individuals  and 
which  might,  if  the  legislature  so  directed,  be  made 
the  subject  of  actions  in  formal  courts.  Questions 
of  this  character  are  administrative  in  so  far  that 
it  is  competent  for  the  legislature  to  commit  their 
decision  to  administrative  officials,'*  but  are  judicial 
or  quasi- judicial  in  so  far  that  the  power  to  decide 
arbitrarily  does  not  exist,  and  notice  and  a  hearing 
are  necessary  to  constitute  due  process  of  law.  The 
decision  of  administrative  officials  may  in  the  ab- 
sence of  constitutional  restriction  be  made  final  by 
the  legislature,  or  it  may  be  reviewable  in  the  courts ; 
but,  if  notice  and  an  opportunity  to  be  heard  are 
present,  in  neither  case  is  the  constitutional  guaranty 
infringed.^ 

In  this  way  the  legislature  has  intrusted  general 
or  local  administrative  officials  with  judicial  func- 
tions in  respect  to  the  assessment  or  collection  of 
taxes,  the  power  of  eminent  domain,  and  the  police 
power,  using  the  last  phrase  in  its  widest  extent.'' 
When  the  authority  to  decide  questions  involving 
private  rights  and  to  hear  complaints  is  conferred 
on  administrative  bodies,  ''their  duties  are  judicial 

sDreyer  v.  Illinoi.s,  187  U.  S.  71,  84.  See  also  Ohio  v.  Dollison, 
194  U.  S.  445,  where,  in  a  liquor  law,  the  absence  of  due  process 
was  claimed  because  the  legislature  failed  to  define  "  wholesale " 
and  "  retail  "  and  left  the  amount  of  fine  or  penalty  to  the  court. 

4  Murray  v.  Hoboken  Land,  etc..  Co.,  18  How.    (U.  S.)    272. 

oHibben  r.  Smith,  191  U.  S.  310. 

«  These  matters  are  treated  in  subsequent  chapters.  See  pp.  159, 
189,  208,  253. 


DUE  PROCESS  OF  LAW  73 

in  their  nature  and  they  are  bound  in  morals  and  in    Chapter 

law  to  exercise  an  honest  judgment  as  to  all  matters  '■ — 

submitted  for  their  official  determination.  It  is  not 
to  be  presumed  that  they  will  act  otherwise  than 
according  to  this  rule,"  and  there  is  no  deprivation 
of  due  process  of  lawJ  In  such  a  case  if  the  admin- 
istrative board  refuse  to  hear  the  person  entitled 
to  be  heard,  he  may  compel  a  hearing  by  mandamus 
or  injunction,  but  he  can  not  waive  his  remedy  and 
then  assert  the  denial  of  a  hearing  as  a  defense  to 
an  action  to  enforce  the  board's  decision.^ 

Notice  and  Hearing. 

Justice  requires  that  a  hearing  and  an  oppor-  f^^^^^f^ 
tunity  to  present  defenses  must  precede  condemna-  °^"^^"''^- 
tion.  Around  this  ideal  of  justice  has  grown  up 
the  constitutional  conception  of  ''the  law  of  the 
land"  or  "due  process  of  law,"  but  the  ideal  was 
not  confined  to  one  system  of  jurisprudence,  and 
was  common  to  thoughtful  men  everywhere.^  Such 
a  principle  would  obviously,  when  the  conception  of 
a  law  of  nature  had  emerged,  be  referred  to  that 
head,  and  thus  it  is  classed  in  an  early  reference  by 
the  English  Court  of  Chancery.  A  Year  Book  of 
Edward  IV  records  that,  "In  Chancery  it  was  ob- 
served by  the  chancellor  that  a  man  shall  not  be 
prejudiced  by  mispleader  or  for  default  of  form 
but  according  to  the  truth  of  his  matter,  and  we 

T  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347,  354; 
Hibben  v.  Smith,  191  U.  S.  322;  Lieberman  r.  Van  De  Carr,  199 
U.  S.  552,  affirming  175  N.  Y.  440. 

8  Reetz  V.  Michigan,  188  U.  S.  505,  509 ;  Shank  v.  Smith  157  Ind. 
401,  cited  in  Hibben  V.  Smith,  191  U.  S.  321. 

9  See  supra,  p.  3. 


74  DUE  PROCESS  OF  LAW 

Chapter    have  to  judge  secundum  conscientiam  et  non  secun- 

dum  allegata,  for  if  a  man  by  bill  suggests  that  one 

has  done  wrong  to  liim,  and  the  defendant  says  noth- 
ing and  we  have  knowledge  that  he  has  not  done 
wrong  to  the  plaintiff,  he  shall  recover  nothing. 
And  there  are  two  kinds  of  powers  and  processes, 
namely,  potentia  ordinata  et  potentia  ahsoluta:  or- 
dinata  is  where  a  certain  order  is  observed,  as  in 
positive  law,  but  the  law  of  nature  non  habet  certum 
ordinem,  but  by  whatever  means  the  truth  may  be 
known,  etc.,  ideo  dicitur  processus  ahsolutus.  In  the 
law  of  nature  it  is  required  that  the  parties  should 
be  present,  or  that  they  should  be  absent  through 
contumacy,  that  is  to  say,  that  they  are  summoned 
and  make  default,  et  examinatio  veritatis."  ^ 
•'•li^w'of '"  Early  in  the  seventeenth  century,  this  require- 

ment of  the  law  of  nature  is  said  by  the  Court  of 
King's  Bench  to  be  implied  in  "the  law  of  the  land" 
as  used  in  Magna  Carta.  In  Bagg's  Case,^  it  was 
detennined  that  an  alderman  of  a  city  could  not  be 
deprived  of  the  freedom  of  the  city  contrary  to  the 
due  course  of  law  as  required  by  the  Great  Charter, 
and  in  illustration  of  the  proposition  it  is  said  that, 
though  lawful  cause  of  his  removal  exists,  yet  if  "it 
appears  by  the  return  that  they  [the  municipal  au- 
thorities] have  proceeded  against  him  without  hear- 
ing his  answer  to  what  was  objected,  or  that  he 
was  not  reasonably  warned,  such  removing  of  him  is 
void,  and  shall  not  bind  the  party,  quia,  quicunque 
aliquid  statuerit,  parte  inaudita  altera,  aequiim  licet 
statuerit,  hand  aequus  fiierit,^  and  such  removing  is 

1  Y.  B.  9  Edw.  IV,  14,  pi.  9. 

2  11  Coke  99a  (A.  D.  1G16). 
8  As  to  these  verses,  see  supra,  p.  2. 


the  land." 


common 


DUE  PROCESS  OF  LAW  75 

against  justice  and  right."     Other  cases  afterwards    Chapter 

decided  dwell  on  the  necessity  for  hearing  in  similar  

circumstances,'*  and  in  Br.  Bently's  Case,  Fortes- 
cue,  J.,  quaintly  remarks:  *'The  laws  of  God  and 
man  both  give  the  party  an  opportunity  to  make  his 
defense,  if  he  has  any.  I  remember  to  have  heard 
it  observed  by  a  very  learned  man  upon  such  an  oc- 
casion, that  even  God  himself  did  not  pass  sentence 
upon  Adam,  before  he  was  called  upon  to  make  his 
defense.  Adam  (says  God)  where  art  thou?  Hast 
thou  not  eaten  of  the  tree,  whereof  I  commanded 
thee  that  thou  shouldest  not  eat?  And  the  same 
question  was  put  to  Eve  also."  ^ 

Tliis  doctrine  was  adopted  into  American  juris-  fuftii"" 
prudence  to  the  fullest  extent,  and  was  referred  to  LT' 
the  principles  either  of  natural  justice,*^  of  interna- 
tional law,'^  or  of  the  common  law.^  ' '  It  is  a  rule, ' ' 
said  Mr.  Justice  Story,  ''founded  in  the  first  princi- 
ples of  natural  justice,  that  a  party  shall  have  an 
opportunity  to  be  heard  in  his  defense  before  his 
property  is  condemned."  And  of  a  foreign  judg- 
ment which  violated  this  rule,  he  proceeded :    ' '  Upon 

*  Rex  V.  Mayor  of  Oxford,  Palmer  453 ;  Protector  v.  Colchester, 
Style  447;  Le>Roy  r.  Campion,  1  Sid.  14,  2  Sid.  97;  Capel  v.  Child, 
2  Cromp.  &  J.  558;  Bonaker  V.  Evans,  16  Q.  B.  162,  71  E.  C.  L.  162. 

In  the  case  from  Style,  in  1655,  Rolle,  C.  J.,  said:  "He  ought 
to  be  heard  what  he  could  say  for  himself,  else  how  could  it  be 
known  whether  there  were  just  cause  to  remove  him  or  no,  and 
it  is  very  hard  to  deprive  one  of  his  freehold  without  hearing  him. 
.  .  .  You  ought  to  have  convented  him  before  you  put  him  out." 
And  Glyn,  C.  J.,  said :  "  You  ought  not  to  proceed  against  him  and 
never  hear  him,  though  the  crime  objected  against  him  be  true." 

5  Rex  V.  Cambridge  University,   1  Stra.   558,   567. 

6  Lafayette  Ins.  Co.  v.  French,  18  How.   (U.  S.')   404. 
7D'Arcy  r.  Ketchum,  11  How.    (U.  S.)    165. 
8  Picquet  v.  Swan,  5  Mason   (U.  S.)    35,  per  Story,  J. 


76 


DUE  PROCESS  OF  LAW 


Chapter    the  eternal  principles  of  justice  it  ought  to  have 
^ —   no  binding  obligation  upon  the  rights  or  property 


Notice  and 
hearing 
requisite 
under  con- 
stitutions. 


of  the  subjects  of  other  nations,  for  it  tramples 
under  foot  all  the  doctrines  of  international  law."^ 
*'It  is  a  rule  as  old  as  the  law,"  the  Supreme  Court 
has  said,  "and  never  more  to  be  respected  than 
now,  that  no  one  shall  be  personally  bound  until 
he  has  had  his  day  in  court;  by  which  is  meant, 
until  he  has  been  duly  cited  to  appear,  and  has 
been  afforded  an  opportunity  to  be  heard.  Judg- 
ment without  such  citation  and  opportunity  wants 
all  the  attributes  of  a  judicial  determination.  It  is 
judicial  usurpation  and  oppression,  and  never  can 
be  upheld  where  justice  is  justly  administered."^ 

What  It  Includes  under  Our  Constitutional 
Guaranties. 

The  clauses  in  our  constitutions  guaranteeing 
"the  law  of  the  land"  and  "due  process  of  law," 
have  always  been  held  to  include  the  opportunity  to 
present  any  defenses  which  might  affect  the  decision 
of  the  court  or  tribunal.  The  opportunity  to  defend 
implies  notice  of  an  official  inquiry  into  the  facts, 
and  "notice  and  hearing"  are  necessary  to  due 
process  of  law;  are,  indeed,  "the  essential  elements" 
thereof.2  The  notice  and  hearing  requisite  are 
present  generally  when  the  person  whose  life,  lib- 
erty, or  property  is  to  be  taken  has,  upon  reasonable 

oBradstreet  v.  Neptune  Ins.  Co.,  3  Sumn.  (U.  S.)  GOO.  And  see 
Windsor  v.  McVeiorh,  93  U.  S.  274. 

iGalpin  v.  Page,  18  Wall.  (U.  S.)  3.50;  Hovey  v.  Elliott,  167 
U.  S.  400. 

2  Simon  v.  Craft,  182  U.  S.  436;  Hooker  v.  Los  Angeles,  188 
U.  S.  314,  318. 


DUE  PROCESS  OF  LAW  77 


notice,  at  some  stage  of  the  proceedings,  an  oppor-    chapter 


tunity  to  present  objections  to  the  proposed  action 
before  a  tribunal  authorized  to  give  effect  to  the  ob- 
jections, if  it  regards  them  as  valid.^  Thus,  after 
judgment  in  a  suit,  a  rule  against  a  person  not  a 
party  thereto  to  show  cause  why  he  should  not  be 
compelled  to  pay  the  amount  of  the  judgment  has 
been  held  to  be  sufficient  notice  and,  if  followed  by 
a  hearing  wherein  opportunity  to  defend  was  al- 
lowed, to  constitute  due  process  of  law.^ 

An  opportunity  to  defend  does  not  in  all  cases  in- 
volve the  presence  of  the  party  during  the  trial.'^ 
Thus,  in  a  trial  of  the  issue  of  lunacy  in  a  State 
court,  it  was  held  not  essential  that  the  alleged  luna- 
tic be  personally  present,  when  notice  of  the  inquisi- 
tion was  personally  served  on  her,  and  her  interests 
were  represented  at  the  hearing  by  a  guardian  ad 
litem,  the  sheriff  having  returned  as  required  by 
statute  that  it  was  not  consistent  with  her  health  or 
safety  to  be  present  in  person,  and  the  statute  war- 
ranting her  absence  in  such  a  case.® 

The  notice  of  a  proposed  course  of  action  which 
will  result  in  a  taking  of  life,  liberty  or  property 
must,  in  order  to  be  due  process,  be  reasonable  in 
time,  so  as  to  give  a  real  opportunity  to  present 
defenses.  The  authority  to  prescribe  the  time  of 
notice  resides  in  the  legislature,  and  the  courts  will 
require  a  very  clear  case  before  interfering  on  this 
ground.    In  a  case  wherein  a  railroad  company  con- 

3  Wilson  V.  Standefer,  184  U.  S.  399,  415. 

4  Louisville,  etc.,  E.  Co.  v.  Schmidt,  177  U.  S.  230. 

5  As  to  the  necessity  of  presence  of  the  accused  during  the  trial 
of  grave  criminal  charges,  see  infra,  p.  165. 

6  Simon  r.  Craft,  182  U.  S.  436. 


Presence 
not  essen- 
tial. 


Notice 
must  be 
reasonable. 


78  DUE  PROCESS  OF  LAW 

Chapter    tended  that  a  reassessment  against  its  property  for 

the  cost  of  a  local  improvement  was  a  deprivation 

without  due  process  because  the  notice  of  the  reas- 
sessment was  insufficient,  it  appeared  that  the  law 
under  which  the  reassessment  was  had  prescribed 
three  successive  publications  in  a  newspaper  stating 
a  time  when  the  council  would  consider  the  reassess- 
ment, and  that  the  owner  of  property  reassessed 
was  given  ten  days  from  the  last  publication  to  file 
objections.  This  virtually  amounted  to  ten  days' 
notice  after  the  last  publication.  The  Supreme 
Court,  in  holding  that  the  notice  could  not  be  pro- 
nounced insufficient,  said :  "It  may  be  that  the  au- 
thority of  the  legislature  to  prescribe  the  length  of 
notice  is  not  absolute  and  beyond  review,  but  it  is 
certain  that  only  in  a  clear  case  will  a  notice  author- 
ized by  the  legislature  be  set  aside  as  wholly  inef- 
fectual on  account  of  the  shortness  of  the  time.  The 
purpose  of  notice  is  to  secure  to  the  owner  the  op- 
portunity to  protect  his  property  from  the  lien  of 
the  proposed  tax  or  some  part  thereof.  In  order 
to  be  effectual  it  should  be  so  full  and  clear  as  to 
disclose  to  persons  of  ordinary  intelligence  in  a  gen- 
eral way  what  is  proposed.  If  service  is  made  only 
by  publication,  that  publication  must  be  of  such  a 
character  as  to  create  a  reasonable  presumption  that 
the  owner,  if  present  and  taking  ordinary  care  of 
his  property,  will  receive  the  information  of  what 
is  proposed  and  when  and  where  he  may  be  heard. 
And  the  time  and  place  must  be  such  that  with  rea- 
sonable effort  he  will  be  enabled  to  attend  and  pre- 
sent his  objections.  .  .  .  The  fact  that  the  owner 
after  being  notified  is  required  to  appear  and  file  his 


DUE  PROCESS  OF  LAW  79 

objections  within  ten  days,  is  thus  the  sole  ground    chapter 

of  complaint.    But  how  many  days  can  the  courts  

fix  as  a  minimum?  How  much  time  can  be  ad- 
judged necessary  as  matter  of  law  for  preparing 
and  filing  objections?  How  many  and  intricate  and 
difficult  are  the  questions  involved!  Regard  must 
always  be  had  to  the  probable  necessities  of  ordi- 
nary- cases.  No  hardship  to  a  particular  individual 
can  invalidate  a  general  rule. ' '  "^ 

A  clear  case  presenting  the  question  of  the  suffi-  of'Stfce?^ 
ciency  of  notice  arose  in  Roller  v.  Holly,^  wherein, 
as  to  nonresidents,  a  statute  of  Texas  requiring  ap- 
pearance on  five  days '  notice  was  held  not  to  be  due 
process  of  law.  *'For  aught  that  appears  here,'* 
said  the  court,  ''parties  may  be  called  from  the  ut- 
termost parts  of  the  earth  to  come  to  Texas  and  de- 
fend suits  against  them  within  five  days  from  the 
day  the  notice  is  served  upon  them. ' '  Under  the  Texas 
statutes,  judgment  by  default  could  only  be  entered 
on  the  fifth  day  of  the  term,  but  a  nonresident  could 
not  be  required  to  know  this  and  was  entitled  to 
construe  the  notice  as  it  read  on  its  face.  "Very 
probably,  too,"  continued  the  court,  ''the  court 
which  rendered  the  judgment  would  have  set  the 
same  aside,  and  permitted  him  to  come  in  and  de- 
fend; but  that  would  be  a  matter  of  discretion,  a 
contingency  which  he  was  not  bound  to  contemplate. 
The  right  of  a  citizen  to  due  process  of  law  must 
rest  upon  a  basis  more  substantial  than  favor  or 
discretion." 

Since  the  constitutional  requirement  regards  the 

T  Bellingham  Bay,  etc.,  R.  Co.  v.  New  Whatcom,  172  U.  S.  318. 
8  176  U.  S.  398. 


80 


DUE  PROCESS  OF  LAW 


Chapter 
II. 


Depend  on 
nature  of 
the  case. 


Dispensed 
with  in 
some  cases. 


reason  of  the  thing  and  looks  to  substance  rather 
than  to  fomi,  notice  and  hearing  depend  on  the  na- 
ture of  the  case  and  must  be  adapted  to  the  class  to 
which  it  belongs.^  Thus  due  process  does  not  ex  vi 
termini  require  proceedings  in  a  court  of  justice.^ 
In  many  cases  a  hearing  before  an  executive  or  ad- 
ministrative board  has  been  held  sufficient  to  legal- 
ize the  taking  of  the  property  of  the  citizen,^  but  it 
has  been  said  that  he  may  be  deprived  of  life  or  lib- 
erty only  after  a  regular  trial  in  due  form  in  a  court 
of  justice.^  This,  however,  was  but  a  dictum,  and  in 
view  of  later  decisions  is  to  be  received  with  caution.^ 
In  some  special  cases  neither  notice  nor  a  trial 
is  requisite  to  constitute  due  process  of  law.  In 
cases  of  direct  contempt  committed  in  its  presence, 
the  court  in  the  exercise  of  a  power  which  is  inherent 
and  necessary  to  the  existence  of  its  authority  to 
protect  the  rights  of  the  citizen  may  punish  the  of- 
fender directly,  and  it  is  within  its  discretion  to  do 
so  without  notice  to  him  or  giving  him  an  opportu- 
nity to  purge  himself  of  the  contempt.^  Again,  when 
the  defendant  on  trial  for  felony  voluntarily  pleads 
guilty,  the  necessity  of  a  trial  is  dispensed  with  and 

0  Davidson  r.  New  Orleans,  96  U.  S.  97,  107;  Palmer  v.  Me- 
Mahon,  133  U.  S.  009;  Glidden  v.  Harrington,  189  U.  S.  258. 

1  McMillen  r.  Anderson,  95  U.  S.  41;  Public  Clearing  House  v. 
Coyne,  194  U.  S.  497,  508. 

2  See  supra,  p.  72. 

sHagar  v.  Reclamation  Dist.  No.   108,  111  U.  S.  701. 

4  See  Caldwell  v.  Texas,  137  U.  S.  692;  In  re  Converse,  137  U.  S. 
624;  Leeper  v.  Texas,  139  U.  S.  462;  Reetz  v.  Michigan.  188  U.  S. 
507.  The  first  three  cases  show  how  reluctant  the  Supreme  Court 
of  the  United  States  is  to  interfere  with  State  courts  acting  in  ac- 
cordance with  general  laws  in  their  own  jurisdiction;  the  last,  the 
wide  freedom  which  the  legislature  has  in  conferring  jurisdiction 
upon  bodies  other  than  established  courts. 

e  Ex  p.  Terry,  128  U.  S.  289.     See  further  infra,  p.  1G9. 


DUE  PROCESS  OF  LAW  81 

the  court  may  pronounce  even  the  sentence  of  death    chapter 

upon  him  without  depriving  him  of  due  process  of  

law.^ 

Provided  the  essentials  of  a  fair  hearing  on  no-  ^eS'not 
tice  are  jDresent,  due  process  of  law  does  not  demand  *^^^"*'^^- 
that  machinery  to  review  the  result  of  the  hearing 
or  to  correct  errors  therein  be  provided.  ''One 
hearing,"  the  Supreme  Court  has  said,  "if  ample, 
before  judgment  satisfies  the  demand  of  the  Consti- 
tution in  this  respect,"  and  "if  a  single  hearing  is 
not  due  process  doubling  it  will  not  make  it  so."^ 
This  rule  of  course  holds  as  to  all  questions  of  mere 
fact  involved.^  When  the  decision  of  any  subordi- 
nate court,  tribunal,  or  oflScer  is  made  final  on  points 
of  la'w  upon  which  the  jurisdiction  may  depend,  the 
distribution  of  the  powers  of  the  government  under 
the  Constitution  may  be  involved.^  The  Federal  Su- 
preme Court  generally  regards  such  questions,  when 
arising  on  error  to  the  State  courts,  as  matter  of 
local  law.i  It  has  gone  far  in  upholding  the  validity 
of  Acts  of  Congress  vesting  in  merely  administrative 
tribunals  the  final  determination  of  questions  in- 
volving their  own  jurisdiction.^ 

eHallinger  v.  Davis,  146  U.  S.  314. 

7  Pittsburg,  etc.,  R.  Co.  V.  Backus,  154  U.  S.  426,  427.  See  also 
McKane  v.  Durston,  153  U.  S.  684,  687;  Reetz  v.  Michigan,  188 
U.  S.  508;  Hibben  v.  Smith,  191  U.  S.  322.     And  see  infra,  p.  159. 

8  Long  Island  Water  Supply  Co.  r.  Brooklyn,  166  U.  S.  683,  695. 
»  See  supra,  Confusion  of  Different  Departments  of  Government, 

p.  68. 

1  See  supra,  p.  71. 

2  See  infra,  The  Persons  Protected  —  Aliens,  p.  190,  and  the  sec- 
tions on  tiotice  and  Hearing  under  Eminent  Domain  and  Police 
Power,  pp.  296,  370. 


82 


DUE  PROCESS  OF  LAW 


Chapter 
II. 


More  than 
hearing  ex 
gratia  re- 
quired. 


Notice  pro- 
vided by 
implica- 
tion. 


Notice  and  Hearing  Must  Be  Required,  Not 
Matters  of  Grace. 

If  notice  and  hearing  are  essential,  tliey  must  be 
required  by  law.  In  a  leading  New  York  case  it  is 
observed:  ''It  is  not  enough  that  the  owners  may 
by  chance  have  notice,  or  that  they  may  as  a  matter 
of  favor  have  a  hearing.  The  law  must  require 
notice  to  them  and  give  them  the  right  to  a  hearing 
and  an  opportunity  to  be  heard.  It  matters  not 
upon  the  question  of  the  constitutionality  of  such  a 
law,  that  the  assessment  has  in  fact  been  fairly  ap- 
portioned. The  constitutional  validity  of  law  is  to 
be  tested  not  by  what  has  been  done  under  it,  but 
by  what  may  by  its  authority  be  done. ' '  ^  But  a  stat- 
ute is  to  be  construed  as  one  law  with  the  Constitu- 
tion, and,  therefore,  where  notice  and  a  hearing  were 
actually  had,  and  due  process  was  required,  not  only 
by  the  federal  but  by  the  State  constitution,  it  was 
not  open  to  the  defendant  to  object  that  the  hearing 
was  merely  ex  gratia.'* 

Similarly  the  powers  granted  by  a  municipal 
charter  must  be  exercised  subject  to  all  the  restric- 
tions imposed  by  constitutional  provisions,  and  a 
clause  therein  granting  local  taxing  power  to  a  city 
need  not  expressly  require  notice.  But  an  ordi- 
nance which  attempts  to  exercise  the  power  by  pro- 
viding for  a  special  assessment  must  require  notice 
either  expressly  or  by  implication.  In  a  case  com- 
ing to  the  Supreme  Court  from  Oregon  a  local  as- 

3  Stuart  V.  Palmer,  74  N.  Y.  183,  188,  by  Earl,  J.,  for  the  court. 
See  also  Rees  r.  Watertown,  19  Wall.  (U.  S.)  107;  Louisville,  etc., 
R.  Co.  V.  Schmidt.  177  U.  S.  230. 

♦  Kentucky  Railroad  Tax  Cases.  115  U.  S.  334. 


DUE  PROCESS  OF  LAW  83 


sessment,  levied  for  the  cost  of  a  sewer,  was  con-    chapter 


tested  on  the  ground  that  no  notice  was  provided 
for  either  in  the  city  charter  or  in  the  ordinance 
requiring  the  construction  of  the  sewer.  The  ordi- 
nance did,  in  fact,  in  accordance  with  the  charter 
name  ''three  disinterested  persons"  as  viewers  and 
direct  that  ''said  viewers  shall  hold  stated  meet- 
ings" in  a  specified  place,  "and  all  persons  inter- 
ested may  appear  before  said  viewers  and  be  heard 
in  the  matter  of  making  said  estimate,"  The  view- 
ers, immediately  upon  their  appointment,  gave  no- 
tice of  their  first  meeting.  In  the  State  court, 
Strahan,  J.,  had  said:  "I  think  it  would  be  a  rea- 
sonable construction  of  this  ordinance  to  hold  that 
the  right  to  be  heard  implies  that  notice  shall  be 
given,  and,  if  this  be  so,  the  ordinance  does  provide 
for  notice  by  necessary  implication.  That  which  is 
implied  in  a  statute  is  as  much  a  part  of  it  as  what 
is  expressed."^  The  Supreme  Court  approved  this 
ruling,  saying  it  was  not  a  strained  construction 
that  the  ordinance  provided  for  notice.*^ 

It  appears  that  a  public  sitting  after  due  notice  J;j^'^^f4'J- 
implies  the  opportunity  to  be  heard.  In  State  Rail-  pifeshe^r- 
road  Tax  Cases,  which  involved  the  validity  of  a  law 
of  Illinois  for  assessing  railroads,  the  statute  pro- 
vided that  railroad  property  should  be  assessed  by 
the  State  board  of  equalization  sitting  at  a  time  and 
place  designated,  and  fixing  the  assessment  with  a 
schedule  of  the  railroad's  property,  made  by  its  own 
officers,  before  it.  The  method  of  assessment  was 
held  not  to  be  open  to  objection.    The  court,  by  Mr. 

5  Paulson  V.  Portland,  16  Oregon  450,  464. 

6  Paulsen  v.  Portland,  149  U.  S.  30,  40. 


84  DUE  PROCESS  OF  LAW 


Chapter    Justice  Miller,  said:     ''This  board  has  its  time  of 

sitting  fixed  by  law.    Its  sessions  are  not  secret. 

No  obstruction  exists  to  the  appearance  of  any  one 
before  it  to  assert  a  right,  or  redress  a  wrong;  and, 
in  the  business  of  assessing  taxes,  this  is  all  that 
can  be  reasonably  asked. "  "^  In  a  later  case  involv- 
ing the  validity  of  a  similar  law  in  Kentucky,  the 
court,  after  quoting  Mr.  Justice  Miller's  remark 
•  above,  said:  ''In  the  proceedings  questioned  in 
these  cases,  there  was  in  fact  and  in  law  notice  and 
a  hearing."  It  laid  stress  on  the  return  of  the  cor- 
poration through  its  officers,  which  constituted  a 
statement  of  its  own  case  and  formed  the  matter  on 
which  the  board  was  to  act.^  A  like  holding  has 
been  made  with  respect  to  a  hearing  before  a  State 
medical  board  for  license  to  practice  medicine.  The 
statute  made  no  special  provision  for  notice,  or 
hearing,  or  authority  to  summon  witnesses  or  com- 
pel them  to  testify,  but  it  provided  for  meetings  at 
specified  times  and  a  specified  place.  ""When  a 
statute,"  said  the  court,  ''fixes  the  time  and  place 
of  meeting  of  any  board  or  tribunal,  no  special 
notice  to  parties  interested  is  required.  The  stat- 
ute is  itself  sufficient  notice.  If  the  plaintiff  in 
error  had  applied  at  any  meeting  for  a  hearing,  the 
board  would  have  been  compelled  to  grant  it,  and  if 
on  such  hearing  his  offer  of  or  demand  for  testimony 
had  been  refused,  the  question  might  have  been 
fairly  presented  to  the  State  courts,  to  what  extent 
the  action  of  the  board  had  deprived  him  of  his 
rights. "» 

T  state  Railroad  Tax  Cases.  92  U.  S.  fllO. 
«Kpntucky  Railroad  Tax  Cases.   115   U.  S.  332. 
9  Reetz  V.  Michigan,  188  U.  S.  505,  50!). 


A 


CHAPTER  in. 

JUEISDICTION  AND  DUE  PROCESS. 
THE   GENERAL   REQUIREMENT   OF   JURISDICTION". 

TOTAL  want  of  jurisdiction  over  the  person    Chapter 

or  thing  to  be  affected  by  a  judgment  renders  ■ 

the  judgment  void,  and  the  proceedings  in  dicuon^ 


which  it  was  obtained  are  obnoxious  to  the  consti-  '^o''"- 
tutional  guaranty  of  due  process  of  law.^  This 
principle  was  deduced  from  the  natural  right  to 
notice  and  a  hearing.  The  acquisition  of  jurisdic- 
tion depends  on  bringing  home  notice  in  some  form 
to  the  person  whose  life,  liberty  or  property  is  to 
be  affected  by  the  judgment,  and  jurisdiction,  though 
acquired,  is  subject  to  the  limitation  that  it  must  be 
lawfully  pursued  and  validates  judgment  only  after 
hearing  or  an  opportunity  to  defend.^     "What  is 

1  Pennoyer  v.  Neff,  95  U.  S.  733. 

2 Windsor  v.  McVeigh,  93  U.  S.  274;  Hassell  v.  Wilcox,  130 U.S. 
493;  Hovey  V.  Elliott,  167  U.  S.  409;  Bradstreet  v.  Neptune  Ins. 
Co.,  3  Sumn.  (U.  S.)  600;  China  Mut.  Ins.  Co.  v.  Force,  142  N.  Y. 
95;  Woodruff  V.  Taylor,  20  Vt.  65;  Boggs  r.  Com.,  76  Va.  989. 

The  principle  of  the  common  law  which  forbade  judgment  against 
any  one  until  he  had  appeared,  2  Poll.  &  M.  Hist.  592,  since  it  ex- 
isted in  very  primitive  times,  could  not  have  been  founded  con- 
sciously on  theories  of  justice  and  the  law  of  nature.  There  was  a 
time  when  the  blood-feud  was  the  only  redress  for  a  person  injured. 
The  blood-feud  was  replaced  by  a  voluntary  reference  to  an  arbitra- 
tor, who  awarded  damages  to  the  person  injured.  Jenks,  Law  and 
Politics  in  the  Middle  Ages,  100  et  seq.;  Maine,  Ancient  Law  (3d  Am. 
ed.)  364;  Holmes,  Com.  Law,  3.  The  voluntary  nature  of  this  pro- 
ceeding was  a  most  marked  feature,  and  impressed  its  character  bo 
deeply  that  traces  survive  in  the  procedure  of  courts  long  after  the 


86 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Sister-state 
judgments. 


absolutely  indispensable  [to  jurisdiction]  is,"  said 
the  United  States  Circuit  Court  for  New  York, 
''unless  he  [the  person  whose  life,  liberty  or 
property  is  involved]  has  consented  to  the  act  of 
deprivation,  that  he  shall  have  notice  of  the 
proceeding,  either  actual  or,  in  proper  cases, 
constructive,  by  publication,  or  by  seizure  of  the 
thing  itself;  and  that  he  shall  have  an  opportu- 
nity to  be  heard  in  defense  of  his  right  or  title. 
If  the  proceeding  is  wanting  in  these  essentials, 
then  by  the  principles  of  the  common  law,  what- 
ever force  and  effect  the  judgment  may  otherwise 
have,  it  can  not  bind  him;  he  is  not  and  can  not 
be  treated  as  a  party  to  the  judgment  without  a  vio- 
lation of  what  is  regarded  as  a  fundamental  rule  of 
natural  justice.  This  rule  of  the  common  law  is  ob- 
viously intimately  connected  with  the  constitutional 
prohibition  upon  the  States  and  the  general  govern- 
ment, forbidding  them  to  deprive  any  person  of  his 
property  without  'due  process  of  law.'  "  ^ 

The  clause  of  the  Constitution  guaranteeing  full 
faith  and  credit  to  the  judgments  of  sister  States, 
has  no  application  to  judgments  rendered  without 
jurisdiction.  The  fact  of  jurisdiction  is  always  open 
to  inquiry,  and  the  record  of  a  judgment  rendered 

state  had  undertaken  the  administration  of  justice  in  regular  tribu- 
nals. The  defendant  must  consent  to  the  jurisdiction,  and  his 
appearance  in  private  actions  is  consent.  The  state  exhausts  itself 
in  efforts  in  civil  cases  to  make  him  appear,  by  the  issuance  of  process 
leading  at  last  to  outlawry,  3  Bl.  Com.,  ch.  xix;  in  criminal  cases, 
to  make  him  submit  to  the  jurisdiction  and  plead,  by  the  pein-e  fo)-te 
et  dure,  4  Bl.  Com.  .341;  Carter,  Outlines  Eng.  Leg.  Hist.  ISO.  But 
it  was  ages  before  the  last  traces  of  the  primitive  conception  were 
outgrown,  and  the  obstinacy  of  the  defendant  was  simply  ignored. 
3Lavin  v.  Emigrant  Industrial  Sav.  Bank,  18  Blatchf.  (U.  S.)  1, 
per  Choate,  D.  J. 


DUE  PROCESS  OF  LAW  87 


in  another  State  may  be  contradicted  as   to  the    Chapter 

existence  of  the  jurisdictional  facts  recited  in  it.^  

''Judgments  recovered  in  one  State  of  the  Union," 
says  Mr.  Justice  Gray,  "when  proved  in  the  courts 
of  another,  differ  from  judgments  recovered  in  a 
foreign  country  in  no  other  respect  than  that  of  not 
being  re-examinable  upon  the  merits,  nor  impeach- 
able for  fraud  in  obtaining  them,  if  rendered  by  a 
court  having  jurisdiction  of  the  cause  and  of  the 
parties."^ 

Speaking  generally,  jurisdiction  extends  to  all  j-^"!*-^^ 
persons  and  things  lying  within  the  territory  of  the  tl^on'or 

•,   .  I     •  -1  persons 

State,  and  to  neither  persons  nor  thmgs  lymg  be-  and  things. 
yond  those  limits.^  The  jurisdiction  of  a  State,  then, 
is  based  on  the  presence  either  of  the  person  or  of 
the  res  within  its  limits ;  it  is  either  jurisdiction  of 
the  person  or  jurisdiction  of  the  subject-matter. 
When  a  person  is  within  the  State,  he  is  subject  to 
the  process  of  its  courts,  and  is  personally  bound 
by  a  judgment  against  him  after  the  service  of  such 
process.  When  he  is  not  within  the  State,  jurisdic- 
tion can  be  acquired  without  his  consent  only 
through,  and  to  the  extent  of,  property  within  the 
State  belonging  to  him,  by  a  proceeding  in  which 
that  property,  the  res,  is  brought  within  the  grasp 
of  the  court."^ 

If  a  fact  or  proceeding  is  jurisdictional  in  its 

4  Thompson  v.  Whitman,  18  Wall.  (U.  S.)  457  (the  leading  case 
on  this  proposition)  ;  Cole  v.  Cunningham,  133  U.  S.  107;  Thormann 
V.  Frame,  176  U.  S.  350;  National  Exch,  Bank  V.  Wiley,  195  U.  S. 
257. 

BHanley  t*.  Donoghue,  116  U.  S.  4. 

6  Story,  Confl.  Laws,  539.     Galpin  v.  Page,  18  Wall.   (U.  S.)  350. 

TBoswell  V.  Otis,  9  How.  (U.  S.)  336;  Cooper  v.  Reynolds,  10 
Wall.    (U.  S.)   316,  317;  Picquet  v.  Swan,  5  Mason  (U.  S.)   35. 


DUE  PROCESS  OF  LAW 


Chapter    nature,  that  is,  if  it  must  exist  or  be  performed  as 

a  condition  to  jurisdiction  attaching  or  continuing, 

of  ju^Hs''-^      a  judgment  rendered  without  the  presence  of  such 

dictional 

facts.  fact  is  necessarily  void  and  subject  to  collateral  at- 
tack.^ Upon  this  ground  the  issuance  of  letters  of 
administration  upon  the  estate  of  a  person  whose 
continued  absence  has  raised  the  presumption  that 
he  is  dead,  is,  if  he  is  subsequently  proved  to  have 
been  alive  at  the  date  of  issuance,  absolutely  void, 
as  are  all  proceedings  thereunder.  The  jurisdiction 
to  grant  such  letters  is  dependent  upon  the  very  fact 
of  death,  and  any  notice  required  to  be  given  is  like- 
wise based  on  the  same  fact,  and  is  not  addressed 
to  or  intended  to  warn  him  upon  whose  estate  let- 
ters are  issued.^  But  a  statute  authorizing  admin- 
istration on  the  estates  of  persons  who  have  disap- 
peared for  a  period  of  seven  years  or  more  and  who 
consequently  are  presumed  dead,  may  be  valid,  if 
it  is  based  on  the  principle  that  mere  absence  for 
the  period  mentioned  gives  jurisdiction  to  grant 
letters  of  administration,  provided  that  reasonable 
provision  for  notice  is  made  in  the  event  that  the 
absentee  may  be  alive,  and  that  property  rights  are 
adequately  safeguarded.^ 

8  Instances  and  illustrations  are  found  in  Wise  v.  Withers,  3 
Cranch  (U.  S.)  331;  Rose  i'.  Himely,  4  Cranch  (U.  S.)  241;  Wis- 
consin r.  Pelican  Ins.  Co.,  127  U.  S,  265;  Andrews  t'.  Andrews,  188 
U.  S.  14;  and  other  cases  cited  in  the  prior  notes  to  this  chapter, 

» Scott  V.  McXeal,  154  U.  S.  34;  Lavin  v.  Emigrant  Industrial 
Sav.  Bank,  18  Blatchf.  (U.  S.)  1,  a  full  and  able  consideration  of 
the  question  by  Choate,  D.  J.  Contra  is  Roderigas  f.  East  River 
Sav.  Inst.,  63  >3".  Y.  4G0,  which  is  somewhat  shaken  in  Roderigas  r. 
East  River  Sav.  Inst.,  76  N.  Y.  316. 

1  Cunnius  v.  Reading  School  Dist.,  198  U.  S.  458,  affirming  206 
Pa.  St.  409. 

Upon  the  latter  point  the  Pennsylvania  statute  upTield  provided 


DUE  PROCESS  OF  LAW  89 


When  jurisdiction  has  once  attached,  errors  upon    Chapter 

questions  of  mere  procedure,  or  in  the  rulings  of  the  '— 

court  or  tribunal,  will  not  have  the  effect  of  oust-  procJId" 
ing  the  jurisdiction,  or  render  a  judgment  or  decree  '"^'' 
pronounced  after  such  error  subject  to  collateral 
attack;  the  proper  and  only  way  to  correct  errors 
not  affecting  the  jurisdiction  is  by  writ  of  error  or 
by  appeal.2 

JUDGMENTS   IN   PERSONAM. 


When  a  proceeding  is  strictly  in  personam,  s^/rvlcfo; 
brought  to  determine  the  personal  rights  and  obli-  esSa". 
gations  of  the  parties,  personal  service  within  the 
State  or  a  voluntary  appearance  in  the  cause  is  es- 
sential to  the  acquisition  of  jurisdiction.^  The  same 
rule  obtains  in  a  proceeding  qua^i  in  rem  as  to  the 
validity  of  a  personal  judgment  attempting  to  deter- 
mine the  obligations  of  the  defendant  except  as  to 
the  disposition  of  the  resJ    The  invalidity  of  judg- 

that,  if  the  absentee  is  proved  to  be  alive,  all  powers  conferred  by 
the  letters  cease,  the  administrator  must  account  to  date,  but  all 
receipts  or  disbursements  remain  valid,  provided  that  no  title  to 
property  received  as  heir,  next  of  kin,  etc.,  is  valid,  but  such  prop- 
erty may  be  recovered.  No  property  is  to  be  paid  to  any  one  by 
the  administrator  unless  the  person  receiving  it  gives  security  to 
return  it  in  the  event  of  the  supposed  decedent  returning. 

2Grignon  v.  Astor,  2  How.  (U.  S.)  319;  McNitt  v.  Turner,  16 
Wall,  (U.  S.)  366;  Mohr  v.  Manierre,  101  U.  S.  417;  Thaw  v. 
Pvitchie,  136  U.  S.  519;  Simmons  v.  Saul,  138  U.  S.  439;  Reinach  v. 
Atlantic,  etc.,  R.  Co.,  58  Fed.  Rep.  43. 

sD'Arcy  v.  Ketchum,  11  How.  (U.  S.)  174;  Webster  v.  Reid,  11 
How.  (U.  S.)  437;  Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  316; 
Pennoyer  v.  Neff,  95  U.  S.  714;  St.  Clair  v.  Cox,  106  U.  S.  353; 
Pana  v.  Bowler,  107  U.  S.  529;  Hart  v.  Hansom,  110  U.  S.  151; 
Grover,  etc.,  Sewing  Mach.  Co.  v.  Radcliffe,  137  U.  S.  294;  Wilson  v. 
Seligman,  144  U.  S.  41. 

4Picquet  v.  Swan,  5  Mason  (U.  S.)  35;  Boswell  v.  Otis,  9  How. 
(U.  S.)    348;  Freeman  v.  Alderson,  119  U.  S.  185. 


90  DUE  PKOCESS  OF  LAW 

Chapter    ments  without  service  results  as  well  from  the  prin- 

ciples  of  international  law  as  from  those  of  due 

process  of  law.  The  rule  that  the  jurisdiction  of  a 
State  is  confined  to  persons  and  things  within  its 
territorial  limits  belongs  to  international  law,  and 
the  principle  of  the  law  of  nature  or  natural  justice, 
which  requires  notice  and  a  hearing  or  opportunity 
to  be  heard  before  condemnation,  is  as  essential  in 
international  law  as  in  due  process.^ 
Personal  Before  the  passage  of  the  Fourteenth  Amend- 

statlT  ment,  the  Supreme  Court  pronounced  void  personal 
judgments  of  any  State  obtained  on  constructive 
service  only  against  a  nonresident,  whenever  called 
in  question  beyond  the  limits  of  the  State  of  the 
forum.  In  so  holding  the  general  doctrines  of  inter- 
national law  were  applied;  for  the  members  of  the 
Union,  save  as  restricted  by  the  Constitution,  possess 
and  exercise  the  authority  of  independent  states.^ 
Nor  is  the  application  of  this  principle  affected  by 
Article  IV,  Section  1,  of  the  Federal  Constitution, 
which  provides  that  ''full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State,"  or  by 
the  Acts  of  Congress  passed  in  pursuance  thereof. 
''The  Act  of  May  26,  1790 «*  (1  Statutes  at  Large, 
122),"  said  the  court,  "gives  to  a  judgment  ren- 
dered in  any  State  such  faith  and  credit  as  it  had 
in  the  courts  of  the  State  where  it  was  recovered. 
But  this  provision,  though  general  in  its  terms,  does 
not  extend  to  judgments  rendered  against  persons 
not  amenable  to  the  jurisdiction  rendering  the  judg- 

cPennoyer  v.  Ncflf,  95  U.  S.  715. 
ePennoyer  v.  Neff,  95  U.  S.  715. 
0*  Rev.  Stat.  U.  S.,  sec.  905;  3  Fed.  Stat.  Annot.  37. 


DUE  PROCESS  OF  LAW  91 

mentsJ     .     .     .     The  doctrine  of  this  court  as  well    Chapter 

as  of  the  courts  of  many  of  the  States  is,  that  this  

Act  of  Congress  was  not  designed  to  displace  that 
principle  of  natural  justice  which  requires  a  person 
to  have  notice  of  a  suit  before  he  can  be  conclusively 
bound  by  its  result;  nor  those  rules  of  public  law 
which  protect  persons  and  property  within  one  State 
from  the  exercise  of  jurisdiction  over  them  by  an- 
other." ^ 

As  the  Constitution  then  stood,  the  federal  gov-  fjdlme°nt 
ernment  had  no  concern  with  the  presence  of  due  o"  forum. 
process  of  law  in,  and  the  consequent  validity  of, 
judgments  rendered  in  a  State  against  persons  or 
property  within  its  own  limits;  and,  although  such 
judgments  rendered  contrary  to  the  first  principles 
of  justice  ought  to  have  been  held  void  by  the  State 
courts,  yet  the  Federal  Supreme  Court  frequently 
limited  its  holding  to  the  point  of  their  extraterri- 
torial invalidity.  Such  language,  it  was  observed  in 
Pennoyer  v.  Ne/f,^  "caia.  be  justified  only  on  the 
ground  that  there  was  no  mode  of  directly  reviewing 
such  judgment  or  impeaching  its  validity  within  the 
State  where  rendered;  and  that,  therefore,  it  could 
be  called  in  question  only  when  its  enforcement  was 
elsewhere  attempted."  But  the  conditions  were 
changed  by  the  enactment  of  the  Fourteenth  Amend- 
ment, and  the  presence  of  due  process  of  law,  as  con- 
strued by  the  Federal  Supreme  Court,  was  made 
an  essential  to  the  validity  of  a  judgment  in  a  State 
court  even  against  its  own  citizens.^    Since,  in  de- 

T  Citing  D'Arey  V.  Ketchum,  11  How.    (U.  S.)    165. 

8  Lafayette  Ins.  Co.  v.  French,  18  How.    (U.  S.)   404. 

9  95  U.   S.  732. 

1  Pennoyer  v.  Neff,  95  U.  S.  715. 


92  DUE  PROCESS  OF  LAW 

Chapter    termining  the  validity  of  judgments,  the  doctrines 

of  international  law  and  of  due  process  of  law  are 

the  same,  the  necessity  of  such  cautious  limitation 
of  the  point  adjudicated  would  seem  to  have  dis- 
appeared, but  expressions  of  this  kind  are  still  em- 
ployed by  the  court.  Thus  in  Grover,  etc.,  Sewing 
Macli.  Co.  V.  Radcliffe,^  it  is  said:  ''The  distinc- 
tion between  the  validity  of  a  judgment  rendered 
in  one  State  under  its  local  laws  upon  the  subject 
and  its  validity  in  another  State  is  recognized  by  the 
highest  tribunals  of  each  of  these  States."  And  the 
court  observed  that  even  if  the  judgment  could  have 
been  entered  against  a  nonresident  on  constructive 
service  in  accordance  with  local  law,  "he  could  not 
be  held  liable  upon  such  judgment  in  any  other 
State,  contrary  to  the  laws  and  policy  of  such  State." 
As  was  said  by  a  State  court  in  a  recent  case,  obser- 
vations such  as  these  were  not  to  be  taken  as  super- 
seding the  principle  established  in  Pennoyer  v.  Nef, 
or  as  casting  any  doubt  upon  it.^ 
Extrater-  To   sccurc   pcrsoual   jurisdiction   over   nonresi- 

ritorial  ^  " 

Itryice}  dents,  a  personal  servdce  beyond  the  limits  of  the 
State  is  equally  ineffective  as  is  constructive  service 
by  publication.  The  process  of  a  court  runs  legally 
only  within  the  limits  of  its  jurisdiction,  and  it  is 
only  by  service  made  within  those  limits  that  a  right 
to  pronounce  a  personal  judgment  against  a  non- 
resident without  his  consent  is  acquired.^ 

A  general  appearance  entered  by  a  person  merely 

2  137  U.  S.  295.     For  similar  remarks,  see  Hart  v.  Sansom,   110 
U.  S.  156;  Goldey  v.  Morninf^  News,  156  U.  S.  518. 

3  Kemper-Thomas  Paper  Co.  r.  Shyer,  108  Tenn.  464. 

■»  Su^g  V.  Thornton.   132  U.  S.  524;  De  La  Montanya  v.  De  La 
Montanya,  112  Cal.  115;  Atherton  v.  Atherton,  181  U.  S.  155. 


DUE  PROCESS  OF  LAW  93 

constructively  served,  waives  all  questions  as  to  the    Chapter 

sufficiency  of  the  service,  and  gives  the  court  juris-  

diction  to  render  a  valid  personal  judgment.^     A  andlpeciai 

appear- 

special  appearance  may  usually  be  entered  to  chal-  ^n"- 
lenge  the  jurisdiction  without  waiving  the  illegality 
of  service  or  submitting  to  the  jurisdiction  of  the 
court.^  But  a  State  statute  which  declares  that  a 
special  appearance  constitutes  a  general  submission 
to  the  jurisdiction  does  not  work  a  denial  of  due 
process  of  law.  It  does  not  interfere  with  the  sub- 
stance of  the  defendant's  rights,  since  he  may 
choose  not  to  appear  at  all,  and  then  he  will  be  free 
to  question  the  judgment  rendered  against  him ;  but 
it  merely  puts  a  certain  construction  on  a  step  in 
the  case,  a  thing  which  the  State  has  a  right  to  doJ 

Judgments  Against  Nonresident  Joint  Debtors,  Etc. 

Suppose  a  nonresident  enters  into  a  partnership  consent  to 

^  -^  ^  certain 

or  an  association  within  a  State,  and  the  laws  of  the  nonreli-^^ 
State  and  his  own  agreement  contain  a  provision  that 
the  State  courts  shall  have  jurisdiction  to  render 
judgments  binding  on  him  in  litigation  arising  out  of 
the  business  of  the  association  or  partnership,  upon 
the  service  of  process  in  a  specified  manner,  as  upon 
service  on  his  resident  partner  or  manager,  consti- 
tuted for  this  purpose  his  agent  to  receive  service. 

"Goldey  v.  Morning  News,  156  U.  S.  521. 

cHarkness  v.  Hyde,  98  U.  S.  476. 

7  York  V.  Texas,  137  U.  S.  15;  Kauffman  v.  Wooters,  138  U.  .S. 
285. 

Such  a  statute  is  not  binding  on  the  federal  courts  sitting  in 
such  States,  under  the  Act  of  Congress  requiring  conformity  "  as 
near  as  may  be "  to  procedure  in  the  State  courts.  Southern  Pac. 
E,.  Co.  V.  Denton,  146  U.  S.  202;  Mexican  Cent.  R.  Co.  v.  Pinkney, 
149  U.  S.  194. 


nonresi- 
dents; 


94 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


—  accord- 
ing to  in- 
ternational 
law. 


Modified 
by  Federal 
Constitu- 
tion. 


Is  jurisdiction  so  obtained  valid?  A  line  of  Eng- 
lish cases  express  the  general  doctrine  of  inter- 
national law  and  hold  that  such  an  agreement  in 
respect  to  jurisdiction  entered  into  by  a  citizen  of 
one  independent  sovereignty  forming  business  rela- 
tions in  another  sovereignty  is  valid  and  gives  the 
latter  sovereignty  jurisdiction  in  accordance  there- 
with, when  the  agreement  is  in  conformity  to  the 
laws  of  the  latter  sovereignty.^  "It  is  not  contrary 
to  natural  justice,"  said  the  Court  of  Exchequer, 
''that  a  man  who  has  agreed  to  receive  a  particular 
mode  of  notification  of  legal  proceedings  should  be 
bound  by  a  judgment  in  which  that  particular  mode 
of  notification  has  been  followed,  even  though  he 
may  not  have  had  actual  notice  of  them."  ^ 

Laws  of  this  character  enforce  a  wise  domestic 
policy,  in  that  they  prevent  the  need  of  the  citizen 
having  recourse  to  foreign  tribunals  for  remedies 
on  the  contracts  made  by  aliens  doing  business 
in  the  sovereignty.  But  how  far  this  principle  of 
international  law  is  applicable  between  the  States 
under  our  dual  system  of  government  depends  on 
the  relation  between  the  States  established  by  the 
Constitution.  This  relation  is  that  of  independent 
sovereignties  except  as  modified  by  constitutional 

sRousillon  v.  Rousillon,  14  Ch.  D.  370;  Copin  v.  Adamson,  L.  R. 
9  Exch.  345,  affirmed  1  Ex.  D.  17;  Bank  of  Australasia  v.  Harding, 
9  C.  B.  661;  Vallee  v.  Dumergiie,  4  Exch.  290;  Dicey,  Confl.  Laws 
377.  See  also  Pennoyer  v.  Neflf,  95  U.  S.  735;  Ouseley  v.  Lehigh 
Valley  Trust,  etc.,  Co.,  84  Fed.  Rep.  602. 

9  Valine  V.  Dumergue,   4  Exch.   290. 

Whether  the  mere  fact  that  the  laws  of  the  foreign  sovereignty 
■where  the  judgment  is  rendered  provide  that  the  citizen  shall  be 
bound  by  a  designated  form  of  notice  is  sufficient  of  itself  to  imply  a 
conclusive  assent  seems  unsettled.  See  Copin  v.  Adamson,  L.  R.  9 
Exch.  345,  1  Ex.  D.   17. 


DUE  PROCESS  OF  LAW  95 


provisions,^   one  of  which  is  that  "the  citizens  of    Chapter 


each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States. ' '  - 

The  right  to  resort  to  the  federal  courts  in  con-  ^Jfjj.*  u> 
troversies  arising  with  citizens  of  other  States  may  coim! 
be  considered  a  privilege  of  citizenship ;  and,  at  any 
rate,  the  jurisdiction  being  fixed  in  the  federal  courts 
by  Act  of  Congress  under  the  Constitution,^  neither 
an  act  of  the  State  legislature  ^  nor  a  private  agree- 
ment made  in  advance  and  operating  generally  as 
to  all  controversies  ^  may  abridge  the  right.  The 
citizen  "can  not  bind  himself  in  advance,"  it  has 
been  said,  "by  an  agreement  which  may  be  spe- 
cifically enforced  thus  to  forfeit  his  rights  at  all 
times  and  on  all  occasions,  whenever  the  case  may 
be  presented,"  ^ 

No  action  on  the  part  of  the  State  or  of  indi-  consent  to 

■t  Statejuns- 

viduals,  then,  can  have  the  effect  of  preventing  a  '^"="°"- 
removal  from  the  State  courts  to  the  federal  courts, 
if  the  right  of  removal  has  been  claimed  in  apt  time.^ 
But  it  seems  that  a  voluntary  agreement  entered 
into  by  a  nonresident  consenting  to  a  State's  juris- 
diction in  suits  to  enforce  liabilities  arising  from  a 
particular  transaction,  may  be  effective,  so  far  at 
least  as  to  create  an  estoppel  to  deny  the  validity 

1  Pennoyer  v.  NefiF,  95  U.  S.  715. 

2  Const.  U.  S.,  Art.  IV,  sec.  2;  9  Fed.  Stat.  Annot.  158. 

3  Acts  March  3,  1887,  c.  373,  §  1  (24  Stat.  L.  552)  ;  Aug.  13,  1888, 
c.  866,  §  1    (25  Stat.  L.  434)  ;  4  Fed.  Stat.  Annot.  265  et  seq. 

4  Cowles  V.  Mercer  County,  7  Wall.  (U.  S.)  118;  Goldey  v.  Morn- 
ing News,  156  U.  S.  518;  Barrow  Steamship  Co.  V.  Kane,  170  U.  S. 
100,   111;   Blake  v.  McClung,   172  U.  S.  239. 

5  Home  Ins.  Co.  v.  Morse.  20  Wall.    (U.  S.)   445. 

6  Home  Ins.  Co.  v.  Morse,  20  Wall.  (U.  S.)  445. 

7  Martin  v.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  686;  Powers  V. 
Chesapeake,  etc.,  R.  Co.,  169  U.  S.  98. 


96  DUE  PROCESS  OF  LAW 

Chapter    of  a  State  judgment  rendered  in  accordance  with  the 

'■ —  agreement.     Thus  an  authority  in  a  judgment  note 

to  an  attorney  to  confess  judgment  has  been  held 
by  a  State  court  to  validate  the  judgment  confessed, 
although  no  notice  had  been  served  on  the  nonresi- 
dent maker.^  However  this  may  be,  the  law  of  a 
state  giving  its  courts  jurisdiction,  without  personal 
service  within  the  State,  over  a  nonresident  partner 
or  party  to  a  joint  contract,  upon  personal  service 
on  the  resident  partner  or  party,  or  on  a  resident 
agent,  is,  at  least  so  far  as  the  extraterritorial  ope- 

8  Kingman  v.  Paulson,  126  Ind.  507. 

Grover,  etc.,  Sewing-Mach.  Co.  V.  Radcliffe,  137  U.  S.  287,  af- 
firming 66  Md.  511,  is  only  to  the  point  that  when  judgment  is  not 
confessed  in  accordance  with  the  authority  given,  it  is  void,  and 
personal  jurisdiction  must  be  acquired  by  service  of  process  on  the 
defendant. 

National  Exch.  Bank  r.  Wiley,  195  U.  S.  257,  is  to  the  point  that 
a  judgment  so  confessed  is  open  to  attack  in  another  State  on  the 
ground  that  jurisdictional   facts   were   wanting. 

Becoming  surety  on  a  bond  under  a  law  which  authorizes  judg- 
ment against  the  surety  when  judgment  is  recovered  against  the 
principal,  is  a  consent  which  binds  the  surety  by  a  judgment  so  ren- 
dered. Beall  r.  New  Mexico,  16  Wall.  (U.  S.)  535;  Moore  v.  Hunt- 
ington, 17  Wall.  (U.  S.)  417;  Johnson  v.  Chicago,  etc.,  Elevator  Co., 
119  U.  S.  388;  Hopkins  f.  Orr,  124  U.  S.  510.  In  the  first  case  cited 
the  court  said:  "A  party  who  enters  his  name  as  surety  on  an 
appeal  bond  does  it  with  a  full  knowledge  of  the  responsibilities 
incurred.  In  view  of  the  law  relating  to  the  subject,  it  is  equiva- 
lent to  a  consent  that  judgment  shall  be  ent«red  up  against  him,  if 
the  appellant  fails  to  sustain  his  appeal.  If  judgment  may  thus  be 
entered  on  a  recognizance  and  against  stipulators  in  admiralty,  we 
see  no  reason  in  the  nature  of  things,  or  in  the  provisions  of  the 
Constitution,  why  this  effect  should  not  be  given  to  appeal  bonds  in 
other  actions,  if  the  legislature  deems  it  expedient.  No  funda- 
mental constitutional  principle  is  involved;  no  fact  is  to  be  ascer- 
tained for  the  purpose  of  rendering  the  sureties  liable  which  is  not 
apparent  in  the  record  itself;  no  object  (except  more  delay)  can  be 
subserved  by  compelling  the  appellees  to  bring  a  separate  action  on 
the  appeal  bond." 


DUE  PROCESS  OF  LAW  97 


ration  of  the  judgment  so  obtained  is  concerned,  a    Chapter 
mere  nullity.''  


Considering  the  cases  holding  this  doctrine  in  JenTcorpo- 
tlie  light  of  the  principle  of  international  law  an-  shar°e"^^"'^ 
nounced  above,  they  establish  that  in  the  absence 
of  the  nonresident's  personal  assent  to  the  jurisdic- 
tion, a  State  can  not  by  its  laws  annex  conditions 
to  the  individual's  right  to  make  lawful  investments 
or  engage  in  lawful  business  within  the  State.^ 
"\¥hen,  however,  conditions  can  be  exacted  consti- 
tutionally, the  general  doctrine  of  international  law 
applies.  It  is  so  in  the  case  of  corporations  —  arti- 
ficial beings  whom  the  State  may  exclude  entirely 
or  receive  on  such  terms  as  it  will.^  And  the  prin- 
ciple has  been  applied  to  the  case  of  individual  stock- 
holders in  corporations.  A  statute  of  Missouri  de- 
clared that  upon  judgment  recovered  against  a  cor- 
poration and  execution  thereon  returned  unsatis- 
fied, execution  might  issue  against  any  stockholder 
individually  ''upon  motion  in  open  court  after  suffi- 

9  Goldey  v.  Morning  News,  156  U.  S.  519,  and  citations  there 
given;  Brooks  v.  Dun,  51  Fed.  Rep.  138;  Moredock  v.  Kirby,  118 
Fed.  Eep.   182. 

The  New  York  joint-debtor  act  provided  that  when  joint  debtors 
are  sued  and  one  is  brought  into  court  on  process,  though  the  other 
is  never  served,  judgment  may  be  rendered  against  both,  by  virtue 
of  the  process.  Suit  was  brought  in  New  York  on  a  joint  and  sev- 
eral obligation  of  G.  and  A.  G.  appeared,  but  A.,  who  was  a  citizen 
of  Louisiana,  was  not  served  and  did  not  appear.  Judgment  was 
given  against  both.  It  was  held,  on  principles  of  general  jurispru- 
dence, that  A.  was  not,  outside  the  State  of  New  York,  bound  by 
the  judgment  and  that  the  full  faith  and  credit  clause  of  the  Con- 
stitution had  no  bearing  on  the  case.     D'Arcy  r.  Ketchum,  11  How. 

(U.  S.)    165;  Board  of  Public  Works  v.  Columbia  College,  17  Wall. 

(U.  S.)    521.     See  also  Hanley  v.  Donoghue,    116  U.  S.  1;   Renaud 
t\  Abbott,  116  U.  S.  277. 

1  See  Moredock  v.  Kirby,  118  Fed.  Rep.   180. 

2  See  infra,  p.  189. 

7 


98  DUE  PROCESS  OF  LAW 

Chapter  cient  notice  in  writing"  to  the  stockholder.  An  exe- 
cution  so  issued  against  a  nonresident,  without  per- 
sonal service  within  the  State,  was  held,  on  familiar 
grounds,  to  have  no  validity  either  in  the  State  of 
issuance  or  elsewhere,"^  but,  in  the  course  of  its  opin- 
ion, the  court  suggested  that  a  State  statute  such 
as  is  frequently  enacted  with  regard  to  corporations, 
to  the  effect  that  each  nonresident  stockholder 
should  appoint  an  agent  within  the  jurisdiction  to 
receive  serv'ice  for  him ;  that,  in  default  of  appoint- 
ment, service  may  be  made  on  a  designated  public 
official,  and  that  judgment  rendered  against  the  cor- 
poration after  such  service  should  bind  the  stock- 
holders whether  within  or  without  the  State,  might 
be  valid  on  stockholders  without  the  State  on  the 
ground  that  the  stockholders  must  be  taken  to  have 
consented  to  the  sufficiency  of  the  service.^ 
Baltmiore  ^^^^  principle  of  this  suggestion  is  applied  in  a 
late  case  in  the  Supreme  Court  of  the  United  States. 
A  statute  of  Maryland  imposed  on  stockholders  in 
Maryland  corporations  a  personal  tax  because  of 
their  ownership  in  the  stock,  without  regard  to  their 
place  of  residence.  The  payment  of  the  tax  by 
the  corporation  on  behalf  of  the  shareholders  was 
provided  for,  and  the  corporation  was,  thereupon, 
given  a  lien  upon  the  stock  for  the  amount  of  the 
taxes  paid,  which  it  was  entitled  to  enforce  by  a 
personal  action.  The  statute  made  no  provision  for 
notice  to  shareholders  individually,  but  provided  a 
sufficient  notice   with   respect   to  the  corporation. 

s  Wilson  V.  Seligman,  144  U.  S.  41.     See  also  Howell  r.  Mangles- 
dorf,  33  Kan.  194;  Dodd  r.  St.  Louis,  etc.,  R.  Co..  108  Mo.  581. 
*  Wilson  V.  Seligman,   144  U.  S.  45,  per  Gray,  J. 


DUE  PROCESS  OF  LAW  99 


The  validity  of  the  tax  was  disputed  by  a  nonresi-    Chapter 


dent  stockholder  on  the  ground  that  the  State  had 
no  jurisdiction  to  levy  a  personal  tax  upon  nonresi- 
dents, at  least,  without  giving  them  personal  notice. 
The  court  adopted  the  view  of  the  Maryland  Court 
of  Appeals  that  "a  notice  to  each  shareholder  is 
unnecessary  because  the  corporation  represents  the 
shareholders,"^  and  said  that  by  that  construction 
the  statutory  provisions  in  question  were  "in  legal 
effect  constituting  the  corporation  the  agent  of  the 
stockholders  to  receive  notice  and  to  represent  them 
in  proceedings  for  the  correction  of  an  assessment," 
and  that  this  condition  attached  by  the  law  to  the 
acquisition  of  stock  in  a  domestic  corporation  was 
not  in  the  opinion  of  the  court  arbitrary  or  un- 
reasonable, nor  a  deprivation  of  due  process  of  law.*^ 

Another  phase  of  the  decisions  denying  the  right  J^f^™^'^*^ 
of  the  State  to  secure  jurisdiction  over  nonresidents  S".^*^ 
entering  into  partnership  or  joint  contracts  within 
the  State,  is  presented  by  laws  making  constructive 
service  on  the  nonresident  party  or  debtor  by  per- 
sonal service  on  the  resident  partner  or  debtor,  bind- 
ing on  the  partnership  property  within  the  State. 
Expressions  are  found  by  the  United  States  Su- 
preme Court  indicating  that  such  laws  are  valid 
within  the  State,  though  invalid  in  other  States."^ 
The  reasoning  in  Pennoyer  v.  Neff  would  seem  to 
establish  that  laws  of  this  character,  since  the  Four- 
teenth Amendment,  give  no  validity  to  judgments 
against  the  joint  property  of  joint  debtors  either 

5  James  Clark  Distilling  Co.  v.  Cumberland,  95  Md.  474;  Corry 
V.  Baltimore,  96  Md.  321. 

6  Corry  v.  Baltimore,   196  U.  S.  468. 

7  Hall  V.  Lanning,  91  U.  S.  160, 


100  CUE  PROCESS  OF  LAW 

Chapter    within  01"  witliout  the  State,^  and  the  same  result 

would  seem  to  follow  as  to  partnerships  where  the 

common-law  conception  of  a  partnership  is  unaltered. 
But  as  to  partnerships,  laws  of  this  character  have 
been  held  to  recognize  the  partnership  as  a  legal 
entity  distinct  from  the  members  who  compose  the 
firm,  and  have  been  held  valid  within  the  State  of 
the  forum.^ 

Jurisdiction  Over  Foreign  Corporations. 

ifvfng^he  -'-^  Pennoyer  v.  Neff,^  it  is  said  that  that  case  is 

iron  not  meant  to  assert  that  a  State  may  not  require  of 

nonresident  corporations  doing  business  therein  an 

assent  to  be  bound  by  a  particular  kind  of  notice, 

8  See  supra,  p.  93. 

Even  within  the  jurisdiction  and  as  to  the  joint  property  of  the 
defendants,  the  validity  of  "  joint  debtor  acts  "  has  been  denied  on 
the  ground  that  they  assume  the  status  on  which  the  jurisdiction 
is  asserted — "that  the  defendants  are  joint  debtors,  and  that  may 
be,  to  the  defendant  who  is  not  served,  the  vital  point  of  the  con- 
troversy."   Tay  V.  Hawley,  39  Cal.  96. 

Such  statutes,  since  they  infringe  on  the  right  to  notice  and  a 
hearing,  can  not  be  referred  to  the  category  of  procedure. 

9  Sugg  V.  Tliornton,  132  U.  S.  524.  This  case  arose  on  the  Texas 
statute,  and  the  only  question  was  the  validity  of  the  judgment  in 
Texas.  Even  this  question  was  considered  in  the  opinion  in  a  sup- 
plementary argument,  after  disposing  of  the  case  on  another  point. 

The  validity  of  the  judgment  in  the  Texas  case  involves  the 
proposition  that  a  State  may  annex  conditions  to  entering  into  a 
partnership  within  its  limits,  without  regard  to  the  intention  of  the 
nonresident  partners.  The  condition  becomes  a  quality  impressed 
on  the  particular  capital  invested,  which  places  it  on  a  different 
plane  from  other  property  belonging  to  the  nonresident.  Invest- 
ments in  corporations  appear  to  be  difTerentiated  by  the  fact  that 
the  incorporators  by  their  voluntary  act,  in  return  for  certain  ad- 
vantages, surrender  certain  privileges. 

The  validity  of  the  Iowa  statute  to  a  like  effect  is  assumed  by 
the  Circuit  Court  in  Ralya  Market  Co.  v.  Armour,  102  Fed.  Rep.  530. 

1  95  U.  S.  735. 


DUE  PROCESS  OF  LAW  101 


or  to  deny  that  this  assent  may  render  a  judgment    Chapter 


obtained  in  conformity  therewith  binding  upon  the 
nonresident  corporation.-  The  disclaimer  was  in- 
serted because  the  court  had  previously  recognized 
the  validity  of  certain  State  laws  which  designate 
a  method  of  bringing  suit  against  a  foreign  corpora- 
tion doing  business  within  a  State  by  service  of 
process  on  its  officers  or  agents  resident  in  the 
State  ;^  or  (as  since  established)  which  require  the 
coi'poration  to  name  an  agent  to  receive  service, 
and  in  default  of  such  desig-nation  validate  service 
on  some  public  officer  of  the  State."*  These  tj^pes  of 
statute  were  rendered  necessary  by  the  once  preva- 
lent doctrine  that  a  foreign  corporation  could  not 
be  sued  for  the  recovery  of  a  personal  demand  out- 
side the  State  where  it  was  chartered,  and  had  its 
legal  domicil.^ 

The  constitutionality  of  these  statutes   follows  Thestat- 

''  utes  con- 

from  the  principles  that  a  corporation  is  not  a  citi-  ^titutionai. 
zen  within  the  privilege  and  immunity  clauses  of 
the  Federal  Constitution ;  ^  that  its  right  to  do  busi- 
ness in  States  other  than  that  of  its  origin  depends 
on  interstate  comity  only ;  "^  that  the  State  has  the 
l^ower  to  attach  reasonable  conditions  to  the  right,^ 
which  power  is  certainly  as  extensive  as  its  power 

2  See  Dicey,  Confl.  Laws,  369,  377,  and  supra,  p.  94. 

3  Lafayette  Ins.  Co.  v.  French,  18  How.   (U.  S.)   404. 

4  Cady  r.  Associated  Colonies,  119  Fed.  Rep.  420. 

5  Middlebrooks  V.  Springfield  F.  Ins.  Co.,  14  Conn.  301 ;  6  Thomp. 
Corp.,  §  7989. 

6  Paul  V.  Virginia,  8  Wall.    (U.  S.)    168;  Blake  v.  McClung,  172 
U.  S.  239;  Orient  Ins.  Co.  V.  Daggs,  172  U.  S.  557. 

7  Augusta  Bank  v.  Earle,  13  Pet.    (U.  S.)   519. 

8  Augusta  Bank  v.  Earle,   13  Pet.    (U.  S.)    519;  Hooper  v.  Cali- 
fornia, 155  U.  S.  648. 


strued. 


102  DUE  PROCESS  OF  LAW 

Chapter    over  domestic  corporations.^    The  authority  to  at- 

^ —  tach  conditions  includes  the  authority  to  demand 

an  assent  to  the  jurisdiction  of  the  State  permitting 
the  corporation  to  do  business  within  its  limits/  but 
does  not  include  the  right  to  attach  as  a  condition 
precedent  to  doing  business  within  the  State,  an 
agreement  abridging  or  impairing  the  right  to  re- 
sort to  the  United  States  courts  in  pursuance  of 
a  privilege  secured  by  the  Federal  Constitution.^ 
Nor  does  it  extend  to  corporations  employed  in  the 
business  of  the  general  government  or  engaged  in 
commerce  under  the  authority  or  with  the  permis- 
sion of  Congress.^ 
Thesm-  The  conditions  imposed  upon  foreign  corpora- 

tions, including  the  provisions  for  service  on  their 
resident  agents,  must  not  violate  the  settled  doc- 
trines of  public  law.  They  must  also  be  reasonable 
and  conform  to  that  rule  of  natural  justice  which 
requires  notice  of  a  suit  to  a  party  before  he  can 
be  bound  by  its  result,^  in  other  words,  to  the  prin- 
ciple of  due  process  of  law.  To  give  validity,  then, 
to  a  personal  judgment  against  a  foreign  corpora- 
tion under  such  a  law,  it  must  appear  that  the  cor- 
poration is  actually  doing  business  within  the  State, 
since  without  this  as  a  condition  precedent  no  juris- 

8  Orient  Tna.  Co.  r.  Daggs,  172  U.  S.  566. 

1  Lafayette  Ins.  Co.  v.  French,  18  How.  (U.  S.)  407;  Baltimore, 
etc.,  R.  Co.  V.  Harris,  12  Wall.  (U.  S.)  65;  Ex  p.  Schollenberger,  96 
U.  S.  376. 

2  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  Ill;  Blake  f.  Mc- 
Clung.  172  U.  S.  255. 

3  Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  125  U.  S. 
185,   186. 

4  Lafayette  Ins.  Co.  V.  French,  18  How.  (U.  S.)  406;  St.  Clair 
c.  Cox,  106  U.  S.  356. 


DUE  PllOCESS  OF  L-V\V  103 


diction  can  attach.^     The  fact,  therefore,  that  an    chapter 


officer  of  the  corporation  who  resides  or  is  tempo- 
rarily within  the  State  is  served  with  process  therein, 
gives  no  jurisdiction  unless  the  corporation  is  en- 
gaged in  business  within  its  limits.^  Further,  un- 
less the  corporation  has  under  the  law  designated 
some  person  to  receive  service  of  process,  or  has 
by  failure  to  do  so  acquiesced  in  a  statutory  desig- 
nation, the  person  served  must  stand  in  a  repre- 
sentative capacity  to  the  corporation  at  the  time  of 
the  serviced 

In  Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,^  the  ^ent'for 
question  who  is  an  agent  upon  whom  service  may  pr^esl° 
be  made  is  much  discussed.  The  language  of  Mr. 
Justice  Field  in  an  earlier  case  was  quoted,  that  it 
is  requisite  that  his  duties  be  not  limited  to  those 
of  a  subordinate  employee,  or  to  a  particular  trans- 
action, and  that  his  agency  had  not  ceased  when  the 
matter  in  suit  arose.^  Another  early  case  was  said 
to  establish  that  an  agent  with  power  to  contract 
was  clothed  with  power  to  receive  notice  for  the 
company.^  It  was  declared  not  a  requisite  that  the 
agent  be  specially  empowered  by  the  company  to 
receive  service  of  process.  "In  the  absence  of  ex- 
press authority,"  it  was  said,  ''the  question  depends 

5  St.  Clair  v.  Cox,  106  U.  S.  359;  Wabash  Western  R.  Co.  r.  Brow, 
164  U.  S.  271;  Conley  v.  Mathieson  Alkali  Works,  190  U.  S.  406; 
Cady  V.  Associated  Colonies,  119  Fed.  Rep.  420. 

6  Fitzgerald,  etc.,  Constr.  Co.  V.  Fitzgerald,  137  U.  S.  98;  Goldey 
V.  Morning  News,  156  U.  S.  518;  Conley  v.  Mathieson  Alkali  Works, 
190  U.  S.  406 ;  Geer  v.  Mathieson  Alkali  Works,  190  U.  S.  428. 

1  St.  Clair  v.  Cox,  106  U.  S.  350 ;  Mexican  Cent.  R.  Co.  v.  Pinkney, 
149  U.  S.  194;  In  re  Hohorst,  150  U.  S.  663. 

8  172  U.  S.  602. 

9  St.  Clair  r.  Cox,  106  U.  S.  359.  360. 

1  Lafayette  Ins.  Co.  v.  French,  18  How.    (U.  S.)   404. 


104 


DUE  PROCESS  OF  LAW 


Chapter    upon  a  review  of  the  surrounding  facts  and  upon 


the  inferences  which  the  court  might  properly  draw 
from  them.  If  it  appear  that  there  is  a  law  of  the 
State  in  respect  to  the  service  of  process  on  foreign 
corporations  and  that  the  character  of  the  agency 
is  such  as  to  render  it  fair,  reasonable,  and  just  to 
imply  an  authority  on  the  part  of  the  agent  to  re- 
ceive service,  the  law  will  and  ought  to  draw  such 
an  inference  and  to  imply  such  authority,  and  serv- 
ice under  such  circumstances  and  upon  an  agent 
of  that  character  would  be  sufficient."  ^  In  this  case 
an  insurance  company  had  ceased  to  do  further  busi- 
ness in  Tennessee  and  had  withdrawn  its  agent  from 
that  State,  but  it  still  had  policies  outstanding  there- 
in, the  premiums  on  which  were  paid  to  an  agent 
in  Kentucky.  Upon  the  death  of  a  policy-holder 
in  Tennessee,  the  company  sent  an  agent  whose  con- 
tract of  employment  described  him  as  employed  ''for 
special  service  in  any  matters  which  may  be  re- 
ferred to  you,"  to  investigate  the  case,  with  author- 
ity to  compromise  the  claim.  Service  upon  this 
agent  was  held  to  be  valid  and  to  constitute  due 
process  of  law. 
Statutes  While  laws  providing  for  the  service  of  process 

warranting  ,  .  . 

IssentLr^  on  foreign  corporations  exist  m  perhaps  all  the 
States,  by  the  better  and  more  modern  doctrine  such 
laws  are  not  essential.  It  is  considered  that  when 
a  corporation  avails  itself  of  the  comity  of  a  sister 
State,  enters  there,  makes  contracts,  and  does  busi- 
ness, it  by  such  action  submits  to  the  jurisdiction  of 
that  State  and  a  service  upon  its  principal  agent 


2  172  U.  S.  617.     See  also  Strain  v.  Chicago  Portrait  Co.,  126  Fed. 
Rep.  831. 


DUE  PROCESS  OF  LAW  105 

therein  is  sufiBcient  to  bind  it  by  a  personal  judgment    chapter 

rendered  by  the  courts  of  that  State.^     "The  liabil-  

ity,"  says  the  United  States  Supreme  Court,  "of  a 
foreign  corporation  to  be  sued  in  a  particular  juris- 
diction need  not  be  distinctly  expressed  in  the  stat- 
utes of  that  jurisdiction,  but  may  be  implied  from 
a  grant  of  authority  in  those  statutes  to  carry  on 
its  business  there."  ■*  The  same  principles  apply  to 
give  jurisdiction  to  the  United  States  courts  sitting 
in  a  State  and  give  them  jurisdiction  against  foreign 
corporations  in  conformity  with  local  statutes  pro- 
viding for  service  of  process,^  or,  upon  the  more 
reasonable  views  just  explained,  in  the  absence  of 
such  statute.^  But  it  should  be  noticed  that  some 
States  hold  to  the  doctrine  that  a  personal  judgment 
against  a  nonresident  corporation  is  invalid  in  the 
absence  of  an  express  law  authorizing  service,  and 
decline  to  take  jurisdiction  of  such  suits  except  as 
far  as  it  has  been  expressly  conferred  by  statute/ 

Extraterritorial  Control  in  Equity  Over  Property 
and  Rights  of  Action. 

Property  and  causes  of  action  beyond  the  limits 
of  a  State  may,  where  those  who  own  the  property 
or  are  entitled  to  maintain  the  action  are  within 

3  Baltimore,  etc.,  R.  Co.  v.  Harris,  12  Wall.  (U.  S.)  65,  ex- 
plained and  applied  in  Barrow  Steamship  Co.  v.  Kane,  170  U.  S. 
108,  109;  Wilson  Packing  Co.  v.  Huntern,  8  Biss.  (U.  S.)  429;  Hay- 
den  V.  Androscoggin  Mills,  1  Fed.  Rep.  93-  IMarch  v.  Eastern  R.  Co., 
40  N.  H.  577  et  seq. 

4  Barrow  Steamship  Co.  V.  Kane,  170  U.  S.   108. 

^  Ex  p.  Schollenberger,  96  U.  S.  369;  New  England  Mut.  L.  Ins. 
Co.  r.  Woodworth,  111  U.  S.  146. 

6  Barrow  Steamship  Co.  V.  Kane.  170  U.  S.  100. 

7  See  cases  cited  in  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  110. 


106  DUE  PROCESS  OF  LAW 

Chapter  the  jurisdiction  of  the  State,  be  controlled  to  a  lim- 
'■ —  ited  extent  by  the  decree  of  a  court  of  equity,  operat- 
ing in  personam  and  enforced  by  process  in  per- 
sonam. Whenever,  by  reason  of  the  existence  of  a 
trust  or  of  fraud  or  of  any  matter  of  equitable  cog- 
nizance, a  court  of  chancery  has  jurisdiction  and  the 
necessary  parties  are  before  the  court,  it  may  by  a 
decree  in  personam  according  to  the  equities  be- 
tween the  parties  compel  a  conveyance  of  the  title 
to  real  property  with  the  formalities  necessary  ac- 
cording to  the  lex  loci  rei  sitae,  and  the  exercise  of 
this  jurisdiction  does  not  interfere  with  the  supreme 
control  over  property  of  the  State  where  it  is  situ- 
ated.^ Upon  the  same  principle,  equity  exercises 
control  over  personal  property  and  contract  rights 
lying  beyond  the  territorial  jurisdiction  of  the 
court.^  The  doctrine  is  applied  by  the  courts  of  the 
parties '  domicil  to  restrain  in  other  States  the  prose- 
cution of  suits  which  would  result  in  defeating  the 
operation  of  the  laws  of  the  domicil  to  the  injury 
of  its  citizens.^  Thus  the  courts  of  the  domicil  may 
enjoin  suits  in  other  States  instituted  to  evade  the 
exemption  laws  of  the  domicil,^  or  foreign  suits  by 
the  resident  creditors  of  the  insolvent,  the  effect  of 

sPenn  v.  Baltimore,  1  Ves.  444,  2  White  &  T.  Lead.  Cas.  (4th 
Am.  ed.)  1806;  Massie  V.  Watts,  6  Cranch  (U.  S.)  148;  Northern 
Indiana  R.  Co.  V.  Michigan  Cent.  R.  Co.,  15  How.  (U.  S.)  233;  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  723;  Phelps  v.  McDonald,  99  U.  S. 
298. 

9  Phelps  r.  McDonald,  99  U.  S.  308;  Cole  v.  Cunningham,  133 
U.  S.  107;  Mitchell  v.  Bunch,  2  Paige  (N.  Y.)  606. 

1  Cole  r.  Cunningham,  133  U.  S.   107. 

2  Wilson  V.  Joseph,  107  Ind.  490;  Zimmerman  v.  Franke,  34  Kan. 
650;  Keyser  v.  Rice.  47  Md.  203;  Snook  v.  Snetzer,  25  Ohio  St. 
516;  12  Am.  &  Eng.  Encyc.  Law  (2d  ed.)  256,  16  id.  422. 


DUE  PROCESS  OF  LAW  107 

which  would  be  to  give  such  creditors  a  preference    chapter 
not  allowed  by  the  domestic  insolvency  laws.^  

JUDGMENTS   IN   EEM. 

In  a  well-known  case  the  Federal  Supreme  Court  LTsdz^ 
laid  down  the  conditions  of  jurisdiction  in  rem  as  eJs^entiar 
follows:  ''Jurisdiction  of  the  res  is  obtained  by  a 
seizure  under  process  of  the  court,  whereby  it  is  held 
to  abide  such  order  as  the  court  may  make  concern- 
ing it.  The  power  to  render  the  decree  or  judg- 
ment which  the  court  may  undertake  to  make  in  the 
particular  cause  depends  upon  the  nature  and  extent 
of  the  authority  vested  in  it  by  law  in  regard  to  the 
subject-matter  of  the  cause.  .  .  .  While  the  gen- 
eral rule  in  regard  to  jurisdiction  in  rem  requires 
the  actual  seizure  and  possession  of  the  res  by  the 
officer  of  the  court,  such  jurisdiction  may  be  ac- 
quired by  acts  which  are  of  equivalent  import  and 
which  stand  for  and  represent  the  dominion  of  the 
court  over  the  thing,  and  in  effect  subject  it  to  the 
control  of  the  court.  Among  this  latter  class  is  the 
levy  of  a  writ  of  attachment  or  seizure  of  real  estate, 
which  being  incapable  of  removal,  and  lying  within 
the  territorial  jurisdiction  of  the  court,  is  for  all 
practical  purposes  brought  under  the  jurisdiction 
of  the  court  by  the  officer's  levy  of  the  writ  and 
return  of  that  fact  to  the  court.  So  the  writ  of 
garnishment  or  attachment  or  other  form  of  service 
on  a  party  holding  a  fund  which  becomes  the  subject 
of  litigation,  brings  that  fund  under  the  jurisdic- 

3  Cole  V.  Cunningham,  133  U.  S.  107  {affirming  Cunningham  v. 
Butler,  142  Mass.  47,  56  Am.  Rep.  657 )  ;  Dehon  r.  Foster,  4  Allen 
(Mass.)   545;   16  Am.  &  Eng.  Encyc.  Law  (2d  ed.)  422. 


108  DUE  PROCESS  OF  LAW 

Chapter    tioH  of  the  court,  thougli  the  money  may  remain  in 

—    the   actual  custody   of  one  not  an  officer   of  the 

court."  ^ 
Proceed-  Proceedings  in  rem  are  either  strictly  in  rem  or 

ings  in  rem 

iniem^''  QUttsi  ifi  rem.  The  first  of  these  classes  includes 
"proceedings  against  property  alone,  treated  as  re- 
sponsible for  the  clahns  asserted  by  the  libelants  or 
plaintiffs.  The  property  itself  is  in  such  actions  the 
defendant,  and,  except  in  cases  arising  during  war 
for  its  hostile  character,  its  forfeiture  or  sale  is 
sought  for  the  wrong,  in  the  commission  of  which 
it  has  been  the  instrument,  or  for  debts  or  obliga- 
tions for  which  by  operation  of  law  it  is  liable.  The 
court  acquires  jurisdiction  over  the  property  in  such 
cases  by  its  seizure,  and  of  the  subsequent  proceed- 
ings by  public  citation  to  the  world,  of  which  the 
owner  is  at  liberty  to  avail  himself  by  appearing 
as  a  claimant  in  the  case."^  Proceedings  quasi  in 
rem  are  brought  against  persons  in  order  to  subject 
specific  property  to  the  discharge  of  the  claims 
asserted.  They  differ  from  actions  strictly  in  rem 
principally  *4n  that  the  interest  of  the  defendant 
is  alone  sought  to  be  affected,  that  citation  to  him 
is  required,  and  that  judgment  therein  is  only  con- 
clusive between  the  parties."  ^  As  to  what  proceed- 
ings are  quasi  and  what  strictly  in  rem,  it  is  said 
in  a  leading  case:  "In  a  strict  sense,  a  proceed- 
ing in  rem  is  one  taken  directly  against  property, 
and  has  for  its  object  the  disposition  of  the  prop- 
erty, without  reference  to  the  titles  of  individual 

♦  Cooper  r.  Eeynoldg,  10  Wall.    (U.  S.)   308,  per  Miller,  J. 
6  Freeman  r.  Alderson,  119  U.  S.  185,  per  Field,  J. 

•  Freeman  i\  Alderson,  119  U.  S.  185. 


DUE  PROCESS  OF  LAW  109 

claimants;  but  in  a  larger  and  more  general  sense,    Chapter 

the  terms  are  applied  to  actions  between  parties  '■ — 

where  the  direct  object  is  to  reach  and  dispose 
of  property  owned  by  them,  or  of  some  interest 
therein.  Such  are  cases  commenced  by  attachment 
against  the  property  of  debtors,  or  instituted  to 
partition  real  estate,  foreclose  a  mortgage,  or  en- 
force a  lien.  As  far  as  they  affect  property  in  the 
State,  they  are  substantially  proceedings  in  rem  in 
the  broader  sense  which  we  have  mentioned."  "^ 

The  typical  case  of  a  proceeding  strictly  in  rem  ^yS?e 
is  a  libel  in  admiralty  to  enforce  a  maritime  lien  or  onfy^on"^ 
forfeiture,  and  such  a  proceeding  binds  the  res  as 
against  the  whole  world,  in  the  absence  of  any  per- 
sonal notice  to  the  parties  interested.^  The  seizure 
brings  the  property  within  the  custody  of  the  court, 
and  operates  to  impart  notice  of  the  fact  to  the  own- 
ers and  others  interested  in  the  property.  In  such 
a  case,  the  rule  that  seizure  is  notice  is  necessary, 
because  the  only  process  is  served  on  the  thing  it- 
self; and  it  is  reasonable,  ''because,"  in  the  lan- 
guage of  Chief  Justice  Marshall,  ''it  is  the  part  of 
common  prudence  for  all  those  who  have  any  interest 
in  it  to  guard  that  interest  by  persons  who  are  in  a 
situation  to  protect  it."^  Some  discussion  has, 
however,  arisen  as  to  whether  mere  seizure  is 
enough  to  give  jurisdiction.  In  Windsor  v.  Mc- 
Veigh, in  a  passage  frequently  quoted,  Mr.  Jus- 
tice Field  says:  "The  jurisdiction  acquired  by  the 
seizure  is  not  to  pass  upon  the  question  of  forfeiture 

T  Pennoyer  v.  Neff,  95  U.  S.  734,  per  Field,  J. 
sCastrique  v.  Imrie,  L.  R.  4  H.  L.  414;   The  Globe,  2  Blatchf. 
(U.  S.)   427. 

9  The  Mary,  9  Cranch    (U.  S.)    144. 


110  DUE  PROCESS  OF  LAW 

Chapter    absolutely,  but  to  pass  upon  that  question  after  op- 

portunity  has  been  afforded  to  its  owner  and  parties 

interested  to  appear  and  be  heard  upon  the  charges. 
To  this  end,  some  notification  of  the  proceedings, 
beyond  that  arising  from  the  seizure,  prescribing 
the  time  within  which  the  appearance  must  be  made, 
is  essential.  Such  notification  is  usually  given  by 
monition,  public  proclamation,  or  publication  in 
some  other  form.  The  manner  of  the  notification  is 
immaterial."^  The  case  in  which  this  passage 
occurs  was  one  which  involved  the  validity  of  con- 
fiscation proceedings  under  an  Act  of  Congress 
authorizing  confiscation  "of  the  property  of  reb- 
els." There  was  a  seizure  of  land  in  controversy 
and  publication  of  monition.  In  response,  the  owner 
of  the  land  appeared  and  filed  an  answer,  but  this 
was  stricken  out  by  the  court  on  the  ground  that 
it  appeared  from  the  answer  that  the  owner  was 
''within  the  Confederate  lines  and  a  rebel."  The 
lands  were,  therefore,  adjudged  forfeited  and  sold. 
It  was  held  that  the  sale  was  void  and  passed  no 
title.  The  statement  of  the  facts  shows  that  no 
question  of  want  of  notice  was  involved,  and  the  sole 
question  was  whether  the  court's  action  deprived 
the  defendant  of  his  constitutional  right  to  be  heard. 
Want  of  a  hearing  after  notice,  not  want  of  notice, 
was  fatal,  in  accordance  with  the  principle  happily 
stated  elsewhere  in  the  opinion  that  "jurisdiction 
is  the  right  to  hear  and  determine ;  not  to  determine 
without  hearing."  ^    The  two  cases  seem  to  present 

1  93  U.  S.  270. 

2  In  a  later  case,  Mr.  Justice  Field  said:  "The  law  assiimes 
that  property  is  always  in  possession  of  its  owner,  in  person  or  by 
agent,  and  it  proceeds  upon  the  theory  that  its  seizure  will  inform 


DUE  PROCESS  OF  LAW  111 

no  f)ractical  conflict.     If  the  mere  seizure  gives  juris-    Chapter 

diction,   the  jurisdiction  may  yet  be  forfeited  by  ■ '■ — 

failure  to  proceed  according  to  the  principles  of 
natural  justice,  namely,  on  notice  and  hearing. 
Usually  in  a  strict  proceeding  in  rem  no  person  can 
complain  of  want  of  hearing,  because  every  person 
having  any  interest  may  make  himself  a  party  and 
appeal  from  the  sentence.^ 

In  attachment  and  garnishment  proceedings  the  ^^^^^^' 
effect  of  a  judgment  depends  on  the  course  adopted 
by  the  defendant.  *'If  the  defendant  appears,  the 
cause  becomes  mainly  a  suit  in  personam,  with  the 
added  incident,  that  the  property  attached  remains 
liable,  under  the  control  of  the  court,  to  answer  any 
demand  which  may  be  established  against  the  de- 
fendant by  the  final  judgment  of  the  court.  But  if 
there  is  no  appearance  of  the  defendant,  and  no 
service  of  process  on  him,  the  case  becomes,  in  its 
essential  nature,  a  proceeding  in  rem,  the  only  effect 
of  which  is  to  subject  the  property  attached  to  the 
payment  of  the  demand  which  the  court  may  find 
to  be  due  to  the  plaintiff. ' '  * 

In  no  case  of  proceedings  in  rem  or  quasi  in  rem  J^l^°^^l^^ 
does  the  court  by  seizure  and  constructive  service  ra"medl 
gain  authority  to  pronounce  a  judgment  binding  the 

him,  not  only  that  it  is  taken  into  the  custody  of  the  court,  but 
that  he  must  look  to  any  proceedings  authorized  by  law  upon  such 
seizure  for  its  condemnation  and  sale."  Pennoyer  v.  Neflf,  95  U.  S. 
715. 

3  The  Mary,  9  Cranch  (U.  S.)  144,  per  Marshall,  C.  J.;  Brad- 
street  V.  Neptune  Ins.  Co.,  3  Sumn.  (U.  S.)  609,  per  Story,  J.; 
The  Ann,  5  Hughes  (U.  S.)  292,  8  Fed.  Rep.  923;  Leigh  v.  Green, 
193  U.  S.  79. 

*  Cooper  V.  Reynolds,  10  Wall.  (U.  S.)  318,  per  Miller,  J.; 
Story  Confl.  Laws  549. 


112 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Seizure 
not  the 
criterion. 


owner  of  the  res  personally ;  it  can  control  only  the 
disposition  of  the  property  seized.^  Even  though 
the  proceeding  is  one,  as  in  a  suit  begun  by  attach- 
ment, where  the  judgment  is  personal  in  form,  it  is 
without  effect  as  to  nonresidents  not  personally 
served,  except  to  dispose  of  the  property  attached. 
No  personal  execution  can  issue  against  the  non- 
resident, nor  can  any  personal  liability  for  costs 
attach  on  such  a  judgment.^ 

Extension  of  Conception  of  Proceedings  In  Rem. 

With  the  principle  so  frequently  announced  that 
all  proceedings  are  either  in  personam  or  in  rem, 
and  that  as  against  nonresidents  without  personal 
service,  only  in  proceedings  in  rem  was  jurisdiction 
acquired  and  due  process  of  law  present,*^  it  be- 
came necessary  to  force  every  proceeding  in  which 
constructive  service  of  process  was  held  valid  into 
the  class  of  proceedings  in  rem. 

We  have  seen  the  conception  extended  from  a 
proceeding  begun  by  seizure  under  process  directed 
against  the  res  as  the  actual  defendant  and  binding 

oBoswell  17.  Otis,  9  How.  (U.  S.)  348;  Cooper  i\  Reynolds,  10 
Wall.  (U.  S.)  318;  Pennoyer  v.  Xeff,  95  U.  S.  723;  Freeman  r. 
Alderson,  119  U.  S.  185;  Johnson  v.  Powers,  139  U.  S.  159;  Dewey 
V.  Des  Moines,  173  U.  S.  193. 

6  Cooper  V.  Reynolds,  10  Wall.  (U.  S.)  318;  Freeman  r.  Aider- 
son,  119  U.  S.  185. 

7  Yet  in  Cooper  v.  Reynolds,  10  Wall.  (U.  S.)  308,  the  court  by 
Miller,  .J.,  said:  "We  do  not  deny  that  there  are  cases,  which  not 
partaking  of  the  nature  of  proceedings  in  rem,  when  the  judg- 
ment is  to  have  an  effect  on  personal  rights,  as  in  divorce  suits,  or  in 
proceedings  to  compel  conveyance,  or  other  personal  acts,  in  which 
the  legislature  has  properly  made  the  jurisdiction  to  depend  on  pub- 
lication of  notice,  or  on  bringing  the  suit  to  the  notice  of  the  party 
in  some  other  mode,  when  he  is  not  within  the  territorial  jurisdic- 
tion." 


DUE  PROCESS  OF  LAW  113 


on  all  the  world,^  to  a  proceeding  against  persons,    Chapter 
begun  by  an  act  "of  equivalent  import"  to  seizure,  '— 


and  conclusive  only  between  the  parties.  An  ac- 
tion to  try  the  title  to  land  and  for  a  partition  there- 
of was  subsequently  held  a  quasi  proceeding  in  rem, 
although  it  is  not  apparent  in  what  sense  it  could  be 
considered  as  begun  by  a  constructive  seizure  of  the 
property.^  The  same  construction  was  put  upon  a 
proceeding  to  condemn  land  for  a  railroad,  where 
the  owner  of  the  property  was  a  nonresident,  who 
was  served  constructively  only.  The  court  held  the 
notice  under  the  circumstances  due  process  of  law 
and  the  proceeding  not  open  to  collateral  attack. 
The  reasoning  is  not  technical,  but  is  placed  on 
broad  grounds  of  public  policy;  that  the  owner  of 

8  In  the  first  lecture  of  "  The  Common  Law,"  Mr.  Justice  Holmes 
outlines  the  history  of  penalties  inflicted  on  animals  and  inanimate 
things,  and  finds  their  source  in  the  savage's  ascription  of  per- 
sonality to  non-human  objects,  animate  and  inanimate.  From  this 
he  derives  the  form  of  the  admiralty  procedure  in  rem,  the  reason 
of  course  being  changed  to  suit  advancing  enlightenment.  If  this  be 
true,  and  every  analogy  points  that  way,  it  would  seem  a  mere  mat- 
ter of  historical  accident  that  the  res  is  the  defendant  and  the  proc- 
ess served  on  it,  and  we  shall  not  be  inclined  to  give  too  much  weight 
to  a  procedure  with  such  an  origin,  when  the  problem  is  whether  a 
particular  proceeding  shall  affect  nonresidents  and  those  not  sum- 
moned personally.  In  an  opinion  pronounced  when  Chief  Justice 
of  Massachusetts,  Mr.  Justice  Holmes  said :  "  It  is  true  as  an  his- 
torical fact,  that  these  symbols  [personification  of  the  res  as  defend- 
ant] are  used  in  admiralty  proceedings.  .  .  .  But  a  ship  is  not 
a  person.  It  can  not  do  a  wrong  or  make  a  contract.  To  say  that  a 
ship  has  committed  a  tort  is  [from  a  modern  standpoint]  merely 
a  short-hand  way  of  saying  that  you  have  decided  to  deal  with  it  as 
if  it  had  committed  one,  because  some  man  has  committed  one  in  fact. 
There  is  no  a  priori  reason  why  any  other  claim  should  not  be  en- 
forced in  the  same  way.  .  .  .  The  fact  that  it  is  not  so  enforced 
imder  existing  practice  affords  no  test  of  the  powers  of  the  legisla- 
ture."    Tyler  r.  Judges,   175  Mass.  71. 

9  Freeman  v.  Alderson,  119  U.  S.  185. 
8 


114  DUE  PROCESS  OF  LAW 

Chapter  real  property  can  not  evade  the  duties  and  obliga- 
'■ —  tions  which  the  law  attaches  to  his  property  by  ab- 
sence from  the  State,  and  that  otherwise  the  bur- 
dens of  taxation  and  eminent  domain  would  be  a 
name  only,^  In  Arndt  v.  Griggs,'^  a  suit  under  the 
Nebraska  statutes  to  remove  a  cloud  on  and  quiet 
the  title  to  certain  lands,  brought  by  one  in  actual 
possession  under-  a  tax  deed,  was  held  to  be  due 
process  of  law  as  to  nonresidents,  although  there 
was  only  constructive  service  upon  them.  There  is 
inherent  in  every  sovereign  state,  it  was  said,  the 
power  to  secure  and  quiet  the  title  to  real  property 
within  its  limits,  and  since  the  duty  which  is  cor- 
relative to  this  power  devolves  on  the  States  and  not 
on  the  national  government,  ''no  proceeding  which 
it  [the  State]  provides  can  be  declared  invalid,  un- 
less in  conflict  with  some  special  inhibition  of  the 
Constitution  or  against  natural  justice."  The  valid- 
ity of  the  judgment  rests  then  on  the  State's  power 
to  settle  titles  within  its  jurisdiction  and  the  exercise 
of  that  power  by  giving  a  greater  effect  to  a  judg- 
ment to  quiet  title  than  was  given  to  such  a  decree 
in  equity.^  Throughout  the  opinion  the  action  is 
treated  as  in  rem,  though  not  begun  by  seizure. 
Proceed-  The  principle  of  this  decision  is  reaffirmed  and 

ings  to  es- 
cheat land     emphasized  in  Hamilton  v.  Brown,'^  wherein  it  was 

held  that  a  proceeding  to  escheat  land  in  conformity 

with  the  Texas  statute  which  provided  for  construc- 

1  Huling  V.  Kaw  Valley  R.,  etc.,  Co.,  130  U.  S.  559. 

2  134  U.  S.  316. 
s  See  Hart  v.   Sansom,    110  U.  S.   151,  and  the  remarks  on  this 

case  in  Aradt  v.  Griggs,  134  U.  S.  316,  and  Roller  v.  Holly,  176  U.  S. 
398. 

*  161  U.  S.  256. 


and  fore- 
close liens, 


DUE  PROCESS  OF  LAW  115 

tive  or  substituted  service  on  nonresidents,  was,  as    Chapter 

to  them,  due  process  of  law  and  conclusive.    The  

court  said:  ''As  to  personal  property,  indeed,  a 
judgment  in  rem  after  notice  by  publication  only 
might  not  bind  persons  who  had  no  actual  notice  of 
the  proceedings,  unless  the  thing  had  been  first 
seized  into  the  custody  of  the  court.  But  it  was 
within  the  power  of  the  legislature  of  Texas  to  pro- 
vide for  determining  and  quieting  the  title  to  real 
estate  within  the  limits  of  the  State  and  within  the 
jurisdiction  of  the  court,  after  actual  notice  to  all 
known  claimants,  and  notice  by  publication  to  all 
other  persons."  In  Roller  v.  Holly, ^  a  suit  to  en- 
force an  equitable  lien  for  purchase  money  against 
a  nonresident  on  constructive  service  was  pro- 
nounced valid,  and  the  court  said :  ' '  If  the  plaintiff 
be  in  possession,  or  have  a  lien  upon  land  within  a 
certain  State,  he  may  institute  proceedings  against 
nonresidents  to  foreclose  such  lien  or  to  remove  a 
cloud  from  his  title  to  the  land,"  calling  in  non- 
residents by  constructive  ser\dce  in  accordance  with 
local  legislation.  "In  suits  for  the  foreclosure  of  a 
mortgage  or  other  [pre-existing]  lien  upon  such 
property,  no  preliminary  seizure  is  necessary  to 
give  the  court  jurisdiction.  The  cases  in  which  it 
has  been  held  that  a  seizure  or  its  equivalent"  is 
necessary,  ''are  those  where  a  general  creditor  seeks 
to  establish  and  foreclose  a  lien  thereby  acquired." 
This  generalization  will  evidently  not  include  Ham- 
ilton V.  Brown,  which  was  not  mentioned  by  the 
court,  but  it  shows  that  the  court  has  consciously 

s  176  U.  S.  398.     See  also  Kemper-Thomas  Paper  Co.  v.  Shyer, 
108  Tenn.  450. 


116 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Character 
of  proceed- 
ings con- 
trolled by 
political 
necessity. 


abandoned  the  conception  of  proceedings  in  rem, 
using  that  tenn  broadly  as  determining  jurisdiction, 
as  begun  by  seizure. 

Indeed  it  seems  fair  to  say  that  the  old  criterion 
has  shifted,  and  that  now  a  quality  which  was  an  in- 
cident of  proceedings  strictly  in  rem  —  the  validity 
of  constructive  service  or  notice  —  has,  under  pres- 
sure from  constitutional  provisions,  become  the  test 
of  proceedings  in  rem  in  the  broad  sense;  that  this 
quality  may  arise  from  considerations  of  political 
necessity  and  expediency  without  reference  to  the 
manner  of  beginning  the  action  and  equally  without 
reference  to  the  conclusive  effect  of  the  judgment. 
In  the  nature  of  things,  in  the  shifting  of  criteria, 
the  State  courts  must  lead  the  way,  and  principles 
may  be  established  in  the  State  courts  for  many 
years  before  receiving  the  approval  or  disapproval 
of  the  Federal  Supreme  Court.  In  order  to  force 
all  cases  of  valid  service  by  substitution  or  construc- 
tion within  the  classification  of  proceedings  in  rem, 
the  conception  of  res  has  been  widened  to  take  in  in- 
tangible things.  We  shall  see  the  status  of  parties 
treated  as  a  res,^  though  in  such  cases  seizure  is  of 
course  impossible.  Seizure  is  dispensed  with  also 
in  cases  where  to  talk  of  a  pre-existing  lien  would 
seem  a  mere  straining  of  language.  Thus  proceed- 
ings for  the  probate  of  a  will  have  been  held  in  rem 
as  binding  upon  constructive  service.  ''The  decree 
of  the  court  admitting  the  will  to  probate,"  it  has 
been  said,  '*is  in  the  nature  of  a  judgment  in  rem 
which  establishes  the  will  against  all  the  world. ' '  ^ 

6  See  infra,  p.  122. 

7  Bonnemort  v.  Gill.   167  Mass.  338.     See  also  Matter  of  Young, 
123  N.  Car.  358,  and  22  Am.  and  Eng.  Encyc.  of  Law  (2d  ed.)   112. 


DUE  PROCESS  OF  LAW  117 

A  recent  case  in  the  United  States  Supreme  Court,    Chapter 

where  a  grant  of  letters  of  administration  was  treat-  

ed  in  effect  as  a  proceeding  in  rem,  illustrates  the 
same  tendency,^ 

In  short,  it  would  seem  that  any  proceeding  is  S-To^nTaf- 
in  rem  for  the  purpose  of  jurisdiction,  which  the  po-  S?'^'  ^^^ 
litical  exigencies  of  the  State,  that  is  public  policy, 
require  should  be  effective  upon  service  by  publica- 
tion or  constructive  service.  In  upholding  the  pro- 
vision of  the  Massachusetts  ''Torrens  Act,"  which 
made  the  registration  of  title  conclusive  as  against 
every  one,  without  personal  service  of  citation.  Chief 
Justice  Holmes,  in  a  passage  which  represents  his 
own  views  only,  said:  ''If,  on  the  other  hand,  the 
object  is  to  bar  indifferently  all  who  might  be 
minded  to  make  an  objection  of  any  sort  against 
the  right  sought  to  be  established,  and  if  any  one 
in  the  world  has  a  right  to  be  heard  on  the  strength 
of  alleging  facts,  which,  if  true,  show  an  inconsist- 
ent interest,  the  proceeding  is  in  rem.  2  Freeman 
Judgm.  (4th  ed.)  606.  All  proceedings,  like  all 
rights,  are  really  against  persons.  Whether  they 
are  proceedings  or  rights  in  rem  depends  on  the 
number    of    persons    affected."^    This    is    surely 

8  Cunnius  v.  Reading  School  Dist.,  198  U.  S.  458.     See  supra,  p.  88. 

9  Tyler  v.  Judges,  175  Mass.  71.  This  case  went  to  the  United 
States  Supreme  Court,  but  the  interesting  question  involved  was 
not  determined,  the  case  being  dismissed  on  the  technical  ground 
that  the  appellant  was  not  a  party  and  the  point  a  mere  moot  point. 
The  validity  of  the  act  would  seem  to  follow  from  the  Supreme 
Court  eases  cited  above.  Acts  of  this  character  have  been  upheld 
also  in  Minnesota,  Dewey  v.  Kimball,  89  Minn.  454;  aud  in  Illinois, 
People  V.  Simon,  176  111,  165.  In  Ohio  such  an  act  was  held  not 
to  afford  due  process  of  law.  State  v.  Guilbert,  56  Ohio  St.  575. 
See  Torrens  Acts.  28  Am.  and  Eng.  Encyc.  of  Law  (2d  ed.)  251; 
Leigh  V.  Green,  193  U.  S.  79,  92. 


118 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


sound  sense  and  seems  to  be  warranted  by  the  trend 
of  the  modern  cases.  But  it  is  not  alone  in  cases 
where  the  judgment  is  conclusive  against  the  world 
that  the  conception  of  proceedings  in  rem  needs  ex- 
tension. In  the  recent  case  of  Cunnius  v.  Reading 
School  Dist.,^  the  power  of  a  State  to  acquire  juris- 
diction over  the  estates  of  absentees  by  constructive 
service  is  upheld.  The  court  does  not  classify  the 
proceeding  as  in  rem  or  in  personam,  but  it  pro- 
ceeds on  the  broad  ground  that  the  property  dealt 
with  is  subject  to  the  burdens  and  obligations  of 
property  generally  in  the  State,  and  that  a  statute 
authorizing  the  procedure  is  within  the  police  powers 
of  the  State  and  necessary  for  the  well-being  of 
society. 


Mobilia 

sequuntur 

personam. 


Tangible 
personal 
property. 


Situs  of  Personal  and  Intangible  Property  as 
Affecting  Jurisdiction. 

Wlien  a  proceeding  in  rem  is  brought  to  subject 
to  particular  claims  personal  propert}^  and  intangi- 
ble things,  an  antecedent  difficulty  arises  in  deter- 
mining whether  the  res  is  within  the  limits  of  the 
State.  Personal  property  has  in  general  no  locality, 
and  the  law  of  the  owner's  domicil  governs  the  va- 
lidity of  transfers  and  alienations  thereof,  accord- 
ing to  the  maxim,  77iohilia  sequuntur  personam,  un- 
less, says  Mr.  Justice  Story,  "  there  is  some  positive 
or  customary  law  of  the  countiy  where  it  is  found 
to  the  contrary.  "2 

The  exception  is  a  large  one  and  removes  a  num- 
ber of  proceedings  from  the  operation  of  the  rule. 


1  ins  U.  S.  458. 

2  Black  V.  Zacharie,  3  How.    (U.   S.)    514. 


the 
maxim 
applied. 


DUE  PROCESS  OF  LAW  119 

According  as  personal  property  is  a  tangible  thing,    Chapter 

or  a  mere  chose  in  action,  different  views  as  to  its   

situs  may  be  entertained.  Where  personalty  con- 
sists of  tangible  objects,  the  laws  of  the  State  where 
it  is  actually  found  determine  the  validity  of  a  seiz- 
ure and  sale  under  attachment  or  garnishment 
rather  than  the  law  of  the  State  of  the  owner's  dom- 
icile The  law  of  the  State  of  the  actual  situs  of 
tangible  personal  property  governs  likewise  its  lia- 
bility to  taxation,  for  the  power  of  a  State  to  sep- 
arate personal  property  from  its  owner  and  give  it 
a  situs  for  taxation  is  indisputable.'* 

When  personal  property  is  intangible,  a  mere  JeJt^Sy 
chose  in  action,  the  question  of  its  situs  is  still  more 
obscure.  Here  the  legal  fiction  mohilia  sequimtur 
personam  seems  the  only  possible  guiding  principle, 
and  accordingly  in  a  famous  case.  State  Tax  on 
Foreign  Held  Bonds^  it  was,  in  the  opinion  pro- 
nounced for  the  majority  of  the  court,  raised  as 
regards  the  right  of  taxation  to  the  position  of  a 
principle  of  law.  The  case  actually  determined  only 
that  a  State  law  imposing  a  tax  on  the  bonds  of  a 
domestic  corporation,  secured  by  a  mortgage  on  real 
property  belonging  to  the  corporation  in  the  State, 
and  authorizing  the  corporation  to  deduct  the 
amount  of  the  tax  from  the  interest  due  on  the 
bonds,  was  as  to  nonresidents  a  law  impairing  the 

3  Green  v.  Van  Buskirk,  5  Wall.    (U.  S.)   307. 

4Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.  (U.  S.)  490;  Pull- 
man's Car  Co.  V.  Pennsylvania,  141  U.  S.  22;  New  Orleans  v.  Stam- 
pel,  175  U.  S.  319;  Blackstone  v.  Miller,  188  U.  S.  204;  Carstaira 
V.  Cochran,  193  U.  S.  10;  Old  Dominion  Steamship  Co.  V.  Virginia, 
198  U.  S.  305;  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199 
U.  S.   194. 

5  15  Wall.   (U.  S.)   300.     See  further  infra,  p.  208. 


maxim 
abandoned. 


120  DUE  PROCESS  OF  LAW 

Chapter  obligation  of  contracts.  But  the  principle  that  debts 
generally  conld  have  no  situs  apart  from  the  resi- 
dence of  the  creditor  was  broadly  announced,  and 
seems  to  have  been  understood  as  the  basis  of  the 
decision. 
o/the^'^  The  principle,  however,  could  not  be  maintained 
in  its  entirety.  It  was  soon  held  that  shares  of 
stock  in  corporations  might  be  separated  from  the 
person  of  the  owner,  given  a  situs  where  the  cor- 
poration was,  and  taxed  against  nonresidents.^  The 
later  cases  lay  stress  on  the  fictitious  character  of 
the  rule  that  the  domicil  of  the  owner  is  the  situs 
of  intangible  personalty,  and  declare  that  the  rule 
must  give  way  whenever  it  conflicts  with  logic  and 
the  policy  of  the  State.'^  While  the  decision  in  State 
Tax  on  Foreign  Held  Bonds  is  followed  when  a  tax 
on  foreign  held  bonds  is  in  question,^- it  has  '^been 
cut  down  to  its  precise  point  by  later  cases.  "^ 
Bonds,  the  subject-matter  of  the  case,  have  been 
distinguished  as  more  than  mere  evidences  of  debt ; 
for  the  debt  upon  such  instruments  is  held  to  be  in- 
separable from  the  paper  which  declares  and  con- 
stitutes it,  and  which,  therefore,  gives  a  physical 
situs  to  the  property  represented.^ 

"Tappan  r.  Merchants'  Nat.  Bank,  10  Wall.  (U.  S.)  490;  State 
Railroad  Tax  Cases,  92  U.  S.  607;  Pullman's  Palace  Car  Co.  v. 
Pennsylvania.  141  U.  S.  18;  Corry  V.  Baltimore,  190  U.  S.  406. 

7  State  Railroad  Tax  Cases,  92  U.  S.  607 ;  Pullman's  Palace 
Car  Co.  V.  Pennsylvania,  141  U.  S.  22;  New  Orleans  i".  Sterapel,  175 
U.  S.  .320;  Black-stone  r.  Miller,  188  U.  S.  206;  Assessors  v.  Comp- 
toir  National  d'Escompte,  191  U.  S.  .388. 

8  Murray  r.   Charleston,  96  U.   S.  432. 

9  Blackstone  r.  IMiller,  188  U.  S.  200. 
1  Blackstone  r.  Miller,  188  U.  S.  200.     See  also  Bacon  v.  Hooker, 

177  Mass.  3.3.5;  2  Ames  Cas.  Bills  &  Notes,  872  et  seq. 

In   New  Orleans  v.   Stempel,   175   U.  S.   320,  the  case  of  State 


DUE  PROCESS  OF  LAW  121 

With  respect  to  matters  other  than  taxation,  the    Chapter 

situs  of  debts  may  be  fixed  at  the  residence  of  the  ' — 

debtor,  and  the  State  where  the  debtor  is  domiciled  febJIvLi- 
,,     .  i     n  ii     1  T  ousiy de- 

may,  m  the  interest  of  the  home  creditors,  control  termined. 

the  legal  fiction  that  the  situs  of  the  debt  is  the  domi- 
cil  of  the  creditor,  since  it  rests  on  comity  merely.^ 
Thus  for  the  purpose  of  succession  and  distribution, 
all  simple  contract  debts  have  their  situs  and  are 
assets  at  the  domicil  of  the  debtor ;  ^  and  a  debt  evi- 
denced by  a  negotiable  security  is  in  this  respect  a 
simple  contract  debt,  without  regard  to  the  place 
where  the  instrument  is  found.*  But  the  situs  of 
debts  by  record  or  specialty  is  ascertained  for  pur- 
poses of  administration  by  the  physical  situs  of  the 
writing  which  evidences  them.^  Again,  under  gar- 
nishment statutes,  the  State  wherein  the  debtor  re- 
sides may  be  made  the  situs  of  the  debt,  so  that  a 
garnishment  there  is  due  process  of  law,  and  it 
would  seem  hard  to  imagine  any  other  rule  which 
would  not  render  such  statutes  a  mere  nullity  as  to 
nonresident  creditors.^ 

Franchises  granted  by  a  State  have  their  situs  JJf°; 
for  purposes   of  taxation  within  the  State  which 
grants  them,  and  the  act  of  another  State  in  taxing 

Tax  on  Foreign  Held  Bonds  is  said  to  establish  only  that  the  fiction 
of  law,  declaring  the  situs  of  bonds  and  mortgages  to  be  that  of  the 
domicil  of  the  owner,  can  not  be  disturbed  by  the  legislature  "  when 
in  fact  they  are  in  his  possession." 

2Wilkins  v.  Ellett,  9  Wall.  (U.  S.)  740;  Chicago,  etc.,  R.  Co. 
t\  Sturm,  174  U.  S.  710. 

sWilkins  v.  Ellett,  9  Wall.  (U.  S.)  740,  108  U.  S.  256;  Wyman 
V.  Halstead,  109  U.  S.  656. 

4  Wyman  v.  Halstead,  109  U.  S.  656. 

5  Beers  v.  Shannon,  73  N.  Y.  292. 

6  Chicago,  etc.,  R.  Co.  v.  Sturm,  174  U.  S.  710;  King  v.  Cross, 
175  U.  S.  396. 


122 


DUE  PROCESS  OF  LAW 


Chapter    sucli  franchises  deprives  their  owners  of  property 
'■ —   without  due  process  of  lawJ 


State  may 
determine 
citizens' 
domicil. 


Jurisdic- 
tion de- 
pends on 
domicil. 


DIVORCE  DECREES. 

There  is  a  class  of  cases  which  are  neither  strictly 
in  personam  nor  in  rem.  Such  are  suits  for  divorce, 
that  is,  suits  to  determine  the  status  toward  one  an- 
other of  the  parties  to  a  marriage.  The  jurisdic- 
tion in  these  cases  depends  upon  the  domicil  of  one 
or  both  parties,  for  it  is  said  to  be  an  inalienable 
right  of  the  State  in  the  exercise  of  its  sovereign 
power  to  determine  the  status  of  its  own  domiciled 
subjects  and  citizens.^ 

When  neither  party  has  acquired  a  hona  fide 
domicil  in  the  State  wherein  the  decree  of  divorce 
is  pronounced  (a  question  which  is  not  to  be  decided 
only  by  the  local  laws  of  that  State),  the  decree  is 
not  binding  in  any  other  State,  nor  is  it  within  the 
full  faith  and  credit  clause  of  the  United  States  Con- 
stitution.^ And  when  a  divorce  has  been  granted 
in  one  State  on  a  merely  colorable  domicil,  obtained 
for  the  special  purpose  of  a  divorce,  in  fraud  of  the 
laws  of  the  State  of  the  real  domicil,  it  is  granted 
without  jurisdiction  and  may  be  impeached  collat- 
erally in  the  State  of  the  real  domicil  or  in  any  other 
State.^  "WTien  the  State  granting  the  divorce  is, 
however,   the   domicil    of  both   parties,   the   decree 

7  Louisville,  etc.,  Ferry  Co.  r.  Kentucky,  188  U.  S.  385. 

8  Ditson  r.  Ditson,  4  R.  I.  106,  quoted  in  Atherton  v.  Atherton, 
181  U.  S.  166.     See  also  Pennoyer  v.  Neff,  95  U.  S.  722.  734. 

9  Bell  V.  Bell,  181  U.  S.  175;  Streitwolf  v.  Streitwolf.  181  U.  S. 
179;  Winston  V.  Winston,  189  U.  S.  507;  Manning  v.  Spurck,  109 
111.  450. 

1  Andrews  v.  Andrews,  188  U.  S.  14.  See  also  Barber  v.  Barber, 
21  How.   (U.  S.)  588;  Wallace  r.  Wallace,  62  N.  J.  Eq.  509. 


DUE  PROCESS  OF  LAW  123 

made  after  due  service  of  process  is  valid  every-    Chapter 

where,  being  witliin  the  protection  of  the  full  faith  

and  credit  clause  of  the  Constitution,^  and  the  same 
rule  obtains  where  one  of  the  parties,  though  not 
personally  served  with  process  within  the  State,  has 
voluntarily  appeared,^ 

But  great  difficulty  and  much  difference  of  opin-  ^^S^s^ 
ion  exist  where  the  real  or  apparent  domicils  of  the  °*p^^*^^^* 
husband  and  wife  are  in  different  States,  and  a  de- 
cree of  divorce  has  been  rendered  after  constructive 
service  only,  without  an  appearance  by  the  nonresi- 
dent. A  wife  acquires  a  domicil  apart  from  her 
husband  through  his  wrong  doing,  as  where  she  is 
forced  to  leave  their  common  matrimonial  domicil 
by  his  conduct,'*  or  when  he  deserts  her,  leaving  her 
in  the  common  matrimonial  domicil ;  ^  but  a  wife  liv- 
ing apart  from  her  husband  without  sufficient  cause 
retains  the  domicil  of  the  husband  and  can  acquire 
no  new  domicil.^ 

The  question  of  the  validity  of  a  decree  of  di-  ^^1°^^^ 
vorce  under  such  circumstances  involves  the  nature  in%l.  ^^ 
of  the  suit  as  partaking  of  the  qualities  of  a  pro- 
ceeding in  rem  or  in  personam.  Marriage  possesses 
at  once  the  qualities  of  a  civil  contract  and  a  status. 
It  has  its  foundation  and  origin  in  contract,  but  the 
contract  results  in  a  status  which  is  beyond  the 

2Atherton  v.  Atherton,  181  U.  S.   155. 

sCheever  v.  Wilson,  9  Wall.    (U.  S.)    108;  Lynde  v.  Lynde,   181 
U.  S.  183. 

4  Hunt  V.  Hunt,  72  N.  Y.  218;  Cheever  r.  Wilson,  9  Wall.   (U.  S.)' 
123,  124. 

5  Barber  v.  Barber,  21  How.   (U.  S.)  582. 
sCheely  v.  Clayton,  110  U.  S.  705;   Atherton  v.  Atherton,  181 

•U.  S.  164. 


sonam. 


124  DUE  PROCESS  OF  LAW 

Chapter  power  of  the  parties."  Some  courts,  looking  en- 
tirely  at  the  contract  elements  of  marriage  and  ig- 
noring or  losing  sight  of  its  other  elements,  proceed 
on  the  theory  that  a  decree  of  divorce  pronounced  in 
the  State  of  the  domicil  of  one  of  the  parties  is  es- 
sentially a  decree  in  personam  and  that,  while  valid 
within  the  State  where  pronounced,  it  is  not  valid 
outside  that  State  in  the  absence  of  personal  serv- 
ice or  voluntary  appearance  on  the  part  of  the  de- 
fendant. As  a  consequence.  A,  the  resident  of  the 
decreeing  State,  is  free  from  the  matrimonial  tie, 
while  B,  the  nonresident,  is  still  bound  by  it.® 
Ill  results.  The  objection  to  treating  decrees  of  divorce  as  of 
no  further  effect  than  judgments  in  personam  is  that 
this  treatment  creates  a  state  of  confusion  in  the 
relations  of  the  parties,  which  is  opposed  to  public 
policy.  The  results  are  well  shown  in  a  recent  New 
Jersey  case:^  ''The  matrimonial  relation  of  the 
husband  and  wife  is  terminated  in  the  State  in 
which  [the  decree]  is  rendered.  Within  the  bound- 
aries of  that  State  a  marriage  afterward  contracted 
by  either  of  the  parties  with  a  third  person  is 
entirely  valid.  So,  too,  sexual  relations  between 
the  former  husband  and  wife  within  that  jurisdic- 
tion subsequent  to  the  entry  of  the  decree  are  illicit, 
unless  sanctioned  by  a  new  marriage.  But  if  the 
decree  is  without  extraterritorial  force,  the  entire 


7Maynard  v.  Hill,  125  U.  S.  210;  Andrews  v.  Andrews,  188 
U.  S.  30;  Ditson  v.  Ditson,  4  R.  I.   101. 

»  People  V.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274 ;  Jones  r.  Jones, 
108  N.  Y.  415,  2  Am.  St.  Rep.  447;  Harris  v.  Harris,  115  N.  Car. 
587,  44  Am.  St.  Rep.  471;  MoCreery  v.  Davis,  44  S.  Car.    1!)5. 

iPelt  V.  Felt,  59  N.  J.  Eq.  607,  83  Am.  St.  Rep.  612,  affirming 
67  X.  J.  Eq.  101.     See  also  Dunham  v.  Dunham,  162  111.  604,  607. 


DUE  PROCESS  OF  LAW  125 

status  of  both  parties  is  reversed  as  soon  as  tliey    Chapter 

pass  beyond  the  limits  of  that  State.    A  subsequent  

marriage  to  a  third  person  within  that  State  then  be- 
comes void,  and  the  relations  of  the  i^arties  to  it  be- 
come adulterous,  while  sexual  relations  between  the 
parties  to  the  decree,  which  are  meretricious  if  in- 
dulged in  within  that  State,  become  matrimonial 
again  when  indulged  in  without  its  borders.  A  con- 
dition of  the  law  which  makes  the  intercourse  of  a 
man  and  woman  either  legitimate  or  adulterous  as 
they  hapi3en  to  be  within  the  limits  of  one  State  or 
another,  is  not  to  be  tolerated  any  further  than  is 
plainly  required  by  public  policy."  A  husband 
without  a  wife  or  a  wife  without  a  husband  is,  says 
the  Federal  Supreme  Court,  a  state  of  things  '^  un- 
known to  the  law. ' '  ^ 

Other  courts  regard  the  status  of  the  parties  as  deJr°e«* 
the  actual  subject-matter  or  res  in  dispute,  and  the  in  rem. 
suit  for  divorce  as  essentially  a  proceeding  in  rem 
or  quasi  in  rem.^  This  view  flows  from  the  neces- 
sity of  recognizing  the  extraterritoriality  of  divorce 
decrees,  on  some  ground  harmonizing  with  general 
principles.     But  the  extraterritoriality  of  such  de- 

2Atherton  v.  Atherton,   181  U.  S.   162. 

3  Dunham  r.  Dunham,  162  111.  605,  610;  2  Bishop  Marriage,  Div. 
&  Sep.  23;  Freeman  on  Judgments,  §  606;  Black  on  Judgments,  §  822. 

"  To  this  familiar  class  of  subjects  [proceedings  in  rem]  has, 
by  a  rather  artificial  process  of  reasoning,  been  added  the  '  marriage 
state.'  This  has  been  done  upon  the  idea  that  it  constitutes  a  dis- 
tinct '  matter,'  and  it  is  accorded  a  situs  as  an  incident  to  the 
domicil  of  one  or  both  of  the  spouses  within  the  territorial  jurisdic- 
tion. Its  foundation  is  a  domicil  icith  residence.  This  result  has 
been  reached  with  much  difficulty"  and  not  without  strong  protest." 
WaHace  r.  Wallace,  62  X.  J.  Eq.  514,  per  Pitney.  V.  C.  See  also 
Coddington  l".  Coddington,  20  X.  J.  Eq.  263;  Ditson  V.  Ditson,  4 
R.  I.   87. 


126 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Decisions 
in  Federal 
Supreme 
Court. 


crees  can  extend  only  to  the  dissolution  of  the  mar- 
riage status  and  can  not  annex  to  the  judgment  the 
incidents  of  a  judgment  in  personam,  such  as  the 
payment  of  alimony,^  unless  indeed  alimony  is  de- 
creed after  a  voluntary  appearance  by  the  non- 
resident party.^ 

Surprisingly  few  cases  dealing  with  this  ques- 
tion have  been  before  the  United  States  Supreme 
Court.  In  Barber  v.  Barber,^  the  decree  enforced 
was  rendered  when  the  parties  were  both  residents 
of  New  York.  In  Cheever  v.  Wilson,"^  the  defendant 
while  not  a  resident  of  Indiana,  where  the  wife  se- 
cured the  divorce,  made  a  voluntary  appearance.  In 
Cheely  v.  Clayton,^  a  divorce  was  held  null  because 
the  court  had  never  obtained  jurisdiction  in  accord- 
ance with  the  local  laws,  but  it  was  declared  that 
''the  courts  of  the  State  of  the  domicil  of  the  par- 
ties doubtless  have  jurisdiction  to  decree  a  divorce, 
in  accordance  with  its  laws,  for  any  cause  allowed 
by  those  laws,  without  regard  to  the  place  of  the 
marriage,  or  to  that  of  the  commission  of  the  of- 
fense for  which  the  divorce  is  granted;  and  a  di- 
vorce so  obtained  is  valid  everywhere."  This  was 
in  accord  with  the  dictum  in  Pennoyer  v.  Neff,  when 
after  exiolaining  the  rules  as  to  the  validity  of  sister, 
State  judgments  in  personam  and  in  rem,  the  court 
said:  **To  prevent  any  misapplication  of  the  views 
expressed  in  this  opinion,  it  is  proper  to  observe  that 
we  do  not  mean  to  assert,  by  anything  that  we  have 


♦  Felt  V.  Felt,  57  N.  J.  Eq.  105;  Rigney  v.  Rigney,  127  N.  Y.  408. 
BLynde  v.  L:^mde,  181  U.  S.  183. 
«21  How.   (U.  S.)  582. 

7  9  Wall.    (U.  S.)    108. 

8  110  U.  S.  701. 


DUE  PROCESS  OF  LAW  127 

said,  that  a  State  may  not  authorize  proceedings  to    Chapter 

determine  the  status  of  one  of  its  citizens  toward  a  

nonresident,  which  would  be  binding  within  the 
State,  though  made  without  service  of  process  or 
personal  notice  to  the  nonresident.  .  .  .  One  of 
the  parties  guilty  of  acts  for  which,  by  the  law  of 
the  State,  a  dissolution  [of  the  marriage  relations] 
may  be  granted,  may  have  removed  to  a  State  where 
no  dissolution  is  permitted.  The  complaining  party 
would,  therefore,  fail  if  a  divorce  were  sought  in 
the  State  of  the  defendant ;  and  if  application  could 
not  be  made  to  the  tribunals  of  the  complainant's 
domicil  in  such  case,  and  proceedings  be  there  insti- 
tuted without  personal  service  of  process,  or  per- 
sonal notice  to  the  offending  party,  the  injured  citi- 
zen would  be  without  redress."  ^ 

We  have  not  yet  reached  a  decision  that  a  decree  Sfbfnd- 
granted  on  constructive  notice  without  the  State  is  stfuctive" 

service 

valid  as  a  decree  in  rem.^*  That  question  seemed  to 
be  presented  in  Atherton  v.  Atlierton,  decided  in 
1901.^  Here  a  woman  resident  in  New  York  mar- 
ried a  resident  of  Kentucky  and  the  pair  acquired 
a  matrimonial  domicil  at  the  husband's  home  in 
Kentucky.  Thereafter  the  wife  left  her  husband 
and  returned  to  New  York,  and  after  the  lapse  of 
a  sufficient  time,  according  to  the  laws  of  Kentucky, 
he  brought  suit  for  a  divorce  upon  the  ground  of 
desertion.  The  statutes  of  Kentucky  provide  that 
in  such  cases  the  plaintiff  is  required  to  file  an  affi- 
davit stating  the  place  of  the  defendant's  residence 
and  his  or  her  post  office,  whereupon  the  clerk  en- 

9  95  U.  S.  734.  1  181  U.  S.   155. 

9*  See  reference  to  Haddock  v.  Haddock  in  the  preface. 


128  DUE  PROCESS  OF  LAW 

Chapter  ters  an  order  warning  tlie  defendant  to  defend  tlie 
'■ —  action  within  sixty  days  and  at  the  same  time  ap- 
points an  attorney  for  such  defendant  ' '  whose  duty 
it  shall  be  to  make  diligent  efforts  to  inform  the  de- 
fendant by  mail  concerning  the  pendency  and  nature 
of  the  action"  and  report  the  results  to  the  court. 
Constructive  notice  is  presumed  on  the  thirtieth  day 
after  the  entry  of  the  order  and  the  appointment  of 
the  attorney.  All  fonnalities  having  been  duly  ob- 
served, a  decree  of  divorce  was  entered  for  the  hus- 
band. Upon  a  subsequent  action  by  the  wife  for  a 
divorce  in  New  York  on  the  ground  of  cruelty,  the 
courts  of  that  State  held  the  Kentucky  decree  not 
binding  in  New  York  and  granted  a  divorce  to  the 
wife,  holding  that  she  had  acquired  a  separate  domi- 
cil  in  New  York  by  reason  of  her  husband's  cruelty, 
so  that  the  courts  of  New  York  had  jurisdiction.^ 
This  judgment  was  reversed  by  the  United  States 
Supreme  Court,  which  held  that  the  Kentucky  court, 
bj^  the  constructive  service,  acquired  jurisdiction  of 
the  case,  and  that  the  judgment  was  within  the  pro- 
tection of  the  full  faith  and  credit  clause  of  the  Con- 
stitution and  valid  in  all  the  States.  But  the  court 
carefully  limited  the  decision  to  the  veiy  point  in- 
volved. It  was  said:  ''This  case  does  not  involve 
the  validity  of  a  divorce  granted  on  constructive 
service,  by  the  court  of  a  State  in  which  only  one 
of  the  parties  ever  had  a  domicil;  nor  the  question 
to  what  extent  the  good  faith  of  the  domicil  may  be 
afterwards  inquired  into.  In  this  case,  the  divorce 
in  Kentucky  was  by  the  court  of  the  State  which 
had  always  been  the  undoubted  domicil  of  the  hus- 

2 155  N.  Y.   129. 


DUE  PROCESS  OF  LAW  129 

band  and  wliich  was  the  only  matrimonial  domicil    Chapter 

•^  III. 

of  the  husband  and  wife.     The  single  question  to  

be  decided  is  the  validity  of  that  divorce,  granted 
after  such  notice  had  been  given  as  was  required  by 
the  statutes  of  Kentucky. "  ^  Of  the  validity  of  the 
constructive  notice  required  by  the  laws  of  Kentucky, 
it  is  said:'*  ''We  are  of  opinion  that  the  undis- 
puted facts  show  that  such  efforts  were  required  by 
the  statutes  of  Kentucky  and  were  actually  made,  to 
give  the  wife  actual  notice  of  the  suit  in  Kentucky, 
as  to  make  the  decree  of  the  court  there  granting  a 
divorce  upon  the  ground  that  she  had  abandoned  her 
husband,  as  binding  on  her  as  if  she  had  been  served 
with  notice  in  Kentucky,  or  had  voluntarily  ap- 
peared in  the  suit.  Binding  her  to  that  full  extent, 
it  established,  beyond  contradiction,  that  she  had 
abandoned  her  husband,  and  precludes  her  from 
asserting  that  she  left  him  on  account  of  his  cruel 
treatment" — a  fact  which  she  asserted  by  her  suit 
in  New  York.  The  constructive  service  to  the  non- 
resident appears  to  avail  nothing  as  bringing  the 
defendant  into  court,  the  statutory  provision  being 
merely  notice  prescribed  in  the  interests  of  fairness  . 
and  to  rebut  the  idea  that  the  proceedings  were  ar- 
bitrary^; in  a  word,  it  brings  the  res  into  court  and 
not  the  defendant.^ 

These  points  are  necessarily  settled  in  Atherton  Points 

*  settled. 

V.  Atherton:  that  the  nature  of  a  divorce  proceed- 
ing is  such  that  it  must  bind  both  parties  equally, 
^'a  husband  without  a  wife  or  a  wife  without  a  hus- 

3  181  U.  S.  171. 

4  181  U.  S.  172. 

5De  La  Montanya  v.  De  La  Montanya.  112  Cal.  11.5,  53  Am.  St. 
Rep.  173;  Doughty  v.  Doughty,  28  N.  J.  Eq.  586.     See  supra,  p.  92. 
9 


130 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


band"  being  unthinkable;  that  jurisdiction  to  pro- 
nounce such  decrees  depends  on  the  domicil  of  the 
parties;  that  jurisdiction  certainly  exists  in  the 
State  where  the  matrimonial  domicil  was,  unless  one 
party  has  bona  fide  acquired  a  new  domicil  for  cause ; 
that  a  decree  thus  pronounced  by  a  State  having 
jurisdiction  is  within  the  full  faith  and  credit  clause 
of  the  Federal  Constitution  and  valid  in  every  State ; 
that  jurisdiction  does  not  require  personal  service 
in  the  State  or  a  voluntary  appearance;  that  con- 
structive service  without  the  State  in  conformity 
with  its  laws,  when  these  provide  for  such  steps  as 
may  be  presumed  to  give  the  absent  party  actual 
notice  of  the  suit,  is  due  process  of  law.  Further 
than  this  the  Supreme  Court  has  not  yet  gone. 


Double 
character 
of  decrees 
in  bank- 
ruptcy. 


BANKRUPT  AND  INSOLVENT  LAWS. 

Proceedings  under  bankrupt  and  insolvent  laws 
likewise  exhibit  a  double  nature.  They  are  proceed- 
ings in  rem  so  far  as  concerns  the  status  of  the 
debtor,  the  title  to  his  property  within  the  State, 
and  the  legal  incidents  necessary  to  the  adjudication 
of  status,^  but  so  far  as  the  operation  of  the  adjudi- 
cation as  a  discharge  is  concerned,  its  validity,  ac- 
cording to  the  view  which  may  be  looked  upon  as 
settled  in  the  United  States,  is  dependent  on  the 
principles  governing  judgments  in  personam^ 

f  Freeman  on  Judgments,  4th  ed.  607 ;  Hanover  Nat.  Bank  v. 
Moyses,   186  U.  S.   181,   192. 

'Baldwin  v.  Hale,  1  Wall.  (U.  S.)  232;  Hawley  v.  Hunt,  27 
Iowa  307;  Main  v.  Messner,  17  Oregon  78. 

It  has  been  strongly  contended  that  in  effecting  a  discharge  the 
adjudication  operates  on  the  status  of  the  bankrupt,  that  such  status 
is  a  res  within  the  jurisdiction  of  the  State  of  the  debtor's  domicil, 
and  that  the  determination  of  the  courts  there  should  be  binding 


DUE  PROCESS  OF  LAW  131 


x\n  adjudication  of  bankruptcy  together  with  the    chapter 


public  formalities  of  notice  required  by  the  act  ^  de- 
termines conclusively  the  status  of  the  debtor  as  a  asfnfem. 
bankrupt  and  the  facts  upon  which  that  status  is 
based,  for  instance,  that  he  has  been  guilty  of  a  par- 
ticular act  of  bankruptcy,^  and  it  operates  on  the 
property  of  the  debtor  within  the  State  to  bring  it 
under  the  control  of  the  court  or  to  transfer  title 
to  the  assignee,  subject  of  course  to  existing  priori- 
ties.^ But  a  bankrupt  or  insolvent  law  has  of  itself 
no  extraterritorial  force,  and  it  is  only  upon  the 
principle  of  comity  that  such  an  adjudication  can 
be  held  operative  on  persons  or  property  not  within 
the  State  rendering  the  judgment  or  decree.  The 
principle  of  comity  has  not  in  the  United  States  been 
extended  to  validate  the  title  of  an  assignee  in  in- 
vitum  under  a  foreign  bankrupt  law,  except  when 
the  claim  of  such  assignee  was  not  opposed  to  the 
claims  of  resident  citizens  or  creditors  pursuing 
their  remedies  by  attachment  or  otherwise.^    Nor  4\?g^^ 

on  courts  everywhere.  See  Discharge  in  Insolvency  and  Its  Effect 
on  N on- Residents,  by  Hollis  R.  Bailey,  6  Harv.  L.  Rev.  349. 

sShawhan  v.  Wherritt,  7  How.  (U.  S.)  643;  Hanover  Nat.  Bank 
V.  Moyses,  186  U.  S.  181,  192. 

0  Brown  v.  Smart,  69  Md.  331,  affirmed  145  U.  S.  454. 

iCrapo  V.  Kelly,  16  Wall.  (U.  S.)  610;  Geilinger  v.  Philippi, 
133  U.  S.  246. 

2  Security  Trust  Co.  v.  Dodd,  173  U.  S.  629;  Receiver  of  State 
Bank  v.  Plainfield  First  Nat.  Bank,  34  N.  J.  Eq.  450;  Matter  of 
Waite,  99  N.  Y.  433.  See  also  Crapo  v.  Kelly,  16  Wall.  (U.  S.) 
622. 

A  voluntary  assignment  for  the  benefit  of  creditors  receives  in 
this  particular  a  more  liberal  construction,  and  "  if  valid  where 
made,  ought  generally  to  be  valid  everywhere,  being  the  exercise  of 
the  personal  right  of  the  owner  to  dispose  of  his  own."  Cole  v. 
Cunningham,  133  U.  S.  129;  Security  Trust  Co.  v.  Dodd,  173 
U.   S.  628. 


132 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Summary 
by  Su- 
preme 
Court. 


has  it  been  recognized  so  as  to  give  validity  to 
a  discharge  under  the  laws  of  one  State  as  against 
the  debt  of  a  nonresident  creditor,  and  it  makes  no 
difference  that  the  debt  was  contracted  or  to  be  per- 
formed in  the  State  granting  the  discharge,^  or  that 
suit  is  brought,  if  the  plaintiff  is  a  nonresident  cred- 
itor, in  the  courts  of  that  State.^  In  other  words,  so 
far  as  the  adjudication  operates  as  a  discharge,  ju- 
risdiction depends  on  the  citizenship  of  the  parties 
and  not  on  the  place  where  the  contract  was  made 
or  where  it  is  to  be  performed.^ 

The  effect  of  bankrupt  or  insolvent  laws  passed 
by  the  several  States  has  been  stated  by  the  Fed- 
eral Supreme  Court  as  follows :  ' '  State  legislatures 
may  pass  insolvent  laws,  provided  there  be  no  Act 
of  Congress  establishing  a  uniform  system  of  bank- 
ruptcy conflicting  with  their  provisions,  and  provid- 
ed that  the  law  itself  be  so  framed  that  it  does  not 
impair  the  obligation  of  contracts.  Certificates  of 
discharge,  however,  granted  under  such  a  law  can 

8  Baldwin  v.  Hale,  1  Wall.  (U.  S.)  223,  disapproving  Scribner 
V.   Fisher,  2   Gray    (Mass.)    43. 

*  In  Main  v.  Messner,  17  Oregon  78,  it  is  held  on  principles 
which  seem  to  follow  irresistibly  from  Baldwin  v.  Hale,  1  Wall. 
(U.  S.)  232,  and  other  decisions  of  the  Federal  Supreme  Court, 
that  a  discharge  under  a  domestic  bankrupt  law  is  no  defense  even 
in  the  courts  of  the  State  granting  the  discharge  against  the  claim 
of  a  non-resident  and  non-assenting  creditor. 

s  Ha^^jley  V.  Hunt,  27  Iowa  303,  an  admirable  opinion  by  Chief 
Justice  Dillon. 

The  English  rule  is  otherwise.  In  Potter  v.  Brown,  5  East  124, 
Lord  Ellenborough  said:  "The  rule  was  well  laid  down  by  Lord 
Mansfield  in  Ballantine  v.  Golding  [Cook,  Bankrupt  Law,  8th  ed. 
487]  that  what  is  a  discharge  of  a  debt  in  the  country  tchere  it  teas 
contracted  is  a  discharge  of  it  everywhere."  This  principle  has 
been  followed  consistently  in  later  cases.  Ellis  v.  M'Henry,  L.  R. 
a  C.  p.  234 ;  Gibbs  r.  La  Soci6t6  Industrielle,  etc.,  25  Q.  B.  D.  399 ; 
Dicey,  Confl.  Laws  449. 


DUE  PROCESS  OF  LAW  133 

not  be  pleaded  in  bar  of  an  action  brought  by  a  citi-    chapter 

zen  of  another  State  in  the  courts  of  the  United  

States,  or  of  any  other  State  than  that  where  the 
discharge  was  obtained  unless  it  appear  that  the 
plaintiff  proved  his  debt  against  the  defendant's 
estate  in  insolvency,  or  in  some  manner  became  a 
party  to  the  proceedings.  Insolvent  laws  of  one 
State  can  not  discharge  the  contracts  of  citizens  of 
other  States ;  because  such  laws  have  no  extraterri- 
torial operation,  and  consequently  the  tribunal  sit- 
ting under  them,  unless  in  cases  where  a  citizen  of 
such  other  State  voluntarily  becomes  a  party  to  the 
proceedings,  has  no  jurisdiction  of  the  case."  ® 

JUKISDICTION  AS  TO   CRIMES  AND  PENALTIES. 

The  common  law  considers  crimes  as  altogether  £caT*'^ 
local,  and  cognizable  and  punishable  exclusively  in 
the  country  where  they  are  committed."  This  prin- 
ciple may  be  considered  from  two  points  of  view: 
first,  no  state,  as  a  general  rule,  extends  the  obli- 
gations and  penalties  of  its  own  criminal  laws  to 
acts  committed  beyond  its  territorial  limits;  and, 
second,  the  courts  of  no  state  execute  the  criminal 
or  penal  laws  of  another. 

6  Oilman  v.  Lockwood,  4  Wall.  (U.  S.)  409.  See  also  Sturges 
V.  Crowninshield,  4  Wheat.  (U.  S.)  187;  Ogden  v.  Saunders,  12 
Wheat.  (U.  S.)  213;  Cook  v.  MoflFat,  5  How.  (U.  S.)  310;  Denny 
V.  Bennett,  128  U.  S.  497;  Cole  v.  Cunningham,  133  U.  S.  114; 
Brown  v.  Smart,  145  U.  S.  454. 

"  An  assignment  under  the  laws  of  another  State  of  the  Union 
stands  upon  the  same  ground  as  one  made  under  the  laws  of  a 
foreign  country;  for  the  States  are  in  this  respect  independent  of 
one  another,  and  subject  to  no  common  control  so  long  as  there  is 
no  national  bankrupt  law."  Taylor  v.  Columbian  Ins.  Co.,  14  Allen 
(Mass.)    353. 

T  Story,  Confl.  Laws  620. 


134 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


The  first  branch  of  this  rule  requires  qualifica- 
tion  and  explanation.    In   England   it   seems   not 

-piScyf  to  be  recognized  as  to  English  subjects,  and  Chief 
Justice  Cockburn  laid  down  that  British  subjects 
in  all  parts  of  the  world  are  subject  to  the  criminal 
laws  of  England.^  In  the  United  States,  its  recogni- 
tion is  subject  to  exceptions  growing  out  of  the 
doctrines  of  international  law,  and  to  modifications 
imder  our  system  of  government  and  our  common 
and  statute  law.  An  exception  founded  on  the  prin- 
ciples of  international  law  exists  with  respect  to 
piracy  on  the  high  seas.  This  offense,  without  re- 
gard to  the  nationality  of  the  vessels  which  are  the 
object  of  the  outrage,  is  regarded  as  a  crime  against 
the  law  of  nations,  and  the  courts  of  all  civilized 
countries  will  inflict  punishment  on  the  guilty  per- 
sons, whether  they  be  citizens  or  foreigners.^ 

Federal  The  dual  uaturo  of  our  govermnent  may  make 

jurisdic- 

sut«''^'"  acts  committed  within  the  territorial  limits  of  a  State 
cognizable  and  punishable  in  the  federal  courts  either 
exclusively  or  concurrently  with  the  State  courts. 
Exclusive  jurisdiction  may  arise  either  because  the 
crime  was  committed  at  a  place  where  the  United 
States  has  exclusive  jurisdiction,  as  on  lands  ac- 
quired from  the  States  for  forts  or  arsenals,^  or 
because  the  crime  is  one  exclusively  against  the 
United  States.  But  the  same  act  may  offend  against 
both  the  United  States  and  the  State.    ''While  of- 


s/n  re  Tivnan,  5  B.  &  S.  679.  117  E.  C.  L.  679. 

oU.  S.  V.  Klintock,  5  Wheat.  (U.  S.)  144;  U.  S.  v.  Smith,  5 
Wheat.   (U.  S.)   153;  U.  S.  r.  Furlong,  5  Wheat.   (U.  S.)    184. 

1  U.  S.  V.  Ward,  Woolw.  (U.  S.)  17,  holding  also  that  an  Indian 
reservation  is  not  within  the  sole  and  exclusive  jurisdiction  of  the 
United  States,  unless  by  express  proviso. 


DUE  PROCESS  OF  LAW  135 


fenses  exclusively  against  the  States  are  exclusively    Chapter 

cognizable  in  the  State  courts,  and  offenses  exclu- ^— 

sively  against  the  United  States  are  exclusively 
cognizable  in  the  federal  courts,  it  is  also  settled 
that  the  same  act  or  series  of  acts  may  constitute  an 
offense  equally  against  the  United  States  and  the 
State,  subjecting  the  guilty  party  to  punishment 
under  the  laws  of  each  government. ' '  ^  Exclusive 
jurisdiction  over  acts  done  by  the  officers  of  the 
United  States  in  the  performance  of  their  official 
duties  has  been  held  to  lie  in  the  federal  courts.^ 

Seeming  exceptions  arise  also  at  common  law  |ving*'°"^ 
and  under  statutes  from  the  nature  and  effects  of  1^"" 
crime.     The  power  to  declare  that  certain  acts  are  ^^^*^" 
criminal,  to  define  crime,  resides  in  the  State,  and 
though  a  criminal  act  may  be  committed  in  one 
State,  yet  its  consequences  may  reach  into  another, 
and  by  common  law  or  statute  may  be  punishable  in 
the  State  where  its  effects  are  felt,  without  regard 
to  the  position  of  the  criminal.*     Or,  when  com- 
mitted elsewhere,  its  criminal  character  may  be  rest- 
ed upon  the  ground  that  it  is  an  offense  against  the 
sovereignty  of  the  State  or  the  rights  of  its  citi- 
zens.^   The  dignity  and  sovereignty  of  the  State  are 

sPettibone  v.  U.  S.,  148  U.  S.  197,  citing  Cross  v.  North  Caro- 
lina, 132  U.  S.   131. 

A  change  in  the  phraseology  of  the  United  States  statutes  deal- 
ing with  the  criminal  jurisdiction  of  the  federal  courts  is  discussed 
and  its  effects  considered  in  Sexton  v.  California,   189  U.  S.  319, 

3  Neagle,  Petitioner,  135  U.  S.  1. 

4  As  by  death  there  from  a  wound  given  elsewhere.  Com.  V. 
Macloon.  101  Mass.  1,  100  Am.  Dec.  89;  Tyler  v.  People,  8  Mich. 
320;  State  v.  Caldwell,  115  N.  Car.  794.  See  Simpson  v.  State, 
92  Ga.  41,  44  Am.  St.  Rep.  75;  State  v.  Morrow,  40  S.  Car.  221. 

5  As  forgery  in  another  State  of  titles  to  land  within  the  State 
of  the  forum.     Hanks  v.  State,   13  Tex.  App.  289.     See  Extraterri- 


136 


DUE  PROCESS  OF  LAW 


Chapter 
III. 


Foreign 
penal  laws 
not  en- 
forced. 


Interstate 
extradi- 
tion. 


directly  involved  when  residents  therein  leave  the 
State  for  the  express  purpose  of  avoiding  its  crim- 
inal laws  as  to  some  act  affecting  their  continued 
status,  commit  the  act  elsewhere,  and  return  within 
the  State.  In  such  a  case,  they  may  he  punished  as 
though  the  forbidden  act  had  been  committed  within 
the  State.®  Again,  a  complete  criminal  act  may 
consist  of  several  distinct  and  separable  acts  or  ele- 
ments, and  the  laws  of  a  State  may  recognize  the 
commission  of  certain  of  the  constituent  acts  within 
the  State  as  constituting  the  commission  of  the  crime 
therein  so  as  to  give  its  courts  jurisdiction.'^  In  the 
absence  of  elements  such  as  these,  the  power  of  a 
State  to  enact  statutes  punishing  extraterritorial 
crime  does  not  exist,^  and  in  a  State  whose  consti- 
tution guarantees  a  trial  by  a  jury  of  the  vicinage, 
the  attempt  to  inflict  punishment  for  acts  committed 
elsewhere  has  been  held  to  be  a  denial  of  due  proc- 
ess of  law.^ 

The  second  branch  of  the  rule,  that  no  State  will 
execute  the  criminal  or  penal  laws  of  another,  while 
universal  in  its  application  by  American  courts,  in- 
volves not  a  question  of  constitutional  law  but  of 
international  comity.^ 

torial  Crime,  by  Dr.  Francis  Wharton,  4  Southern  Law  Rev.  N.  S. 
690. 

^  Ex  p.  Kinney,  3  Hughes  (U.  S.)  9.     See  also  State  v.  Cutshall, 
110  N.  Car.  5.52. 

7  People  V.  Burke,  11  Wend.   (N.  Y.)    129;  State  v.  Caldwell,  115 
N.  Car.  794;  Ex  p.  McNeeley,  36  W.  Va.  84. 

8  See  People  v.  Merrill,  (Supm.  Ct.  Gen.  T.)  2  Park.  Crim.  (N.  Y.) 
590,  reversed  on  otli<er  grounds  14  N.  Y.  74. 

estate  v.  Cutshall,  110  N.  Car.  545. 

1  Wisconsin   v.   Pelican   Ins.   Co.,    127   U.   S.  268 ;   Huntington  v. 
Attrill,   146  U.  S.  657. 


DUE  PROCESS  OF  LAW  137 

The  provision  in  the  United  States  Constitution    Chapter 

for  theextraditionof  fugitives  from  the  justice  of  one  '■ — 

State  who  take  refuge  in  another  State  practically 
involves  considerations  of  interstate  comity  alone. 
Though  the  duty  imposed  on  the  executive  of  the 
State  where  the  criminal  has  taken  refuge  is  merely 
a  ministerial  one,  the  United  States  has  no  authority 
under  the  Constitution  or  Acts  of  Congress  to  com- 
pel compliance  by  an  executive  who  refuses  sur- 
render.2  When  the  presence  of  a  fugitive  from  jus- 
tice in  a  sister  State  has  been  secured  by  violence, 
there  is  no  constitutional  provision  to  which  the  ac- 
cused can  appeal  to  prevent  his  trial  on  the  criminal 
charge  in  the  State  to  which  he  has  been  abducted.^ 
Nor  when  he  has  been  rightfully  brought  within  a 
State  on  one  charge  is  there  anything  to  prevent 
his  trial  on  other  criminal  charges  without  first 
giving  him  an  opportunity  to  return  to  the  State 
from  which  he  was  extradited.^ 

2 Kentucky  V.  Dennison,  24  How.   (U.  S.)  66. 

sKer  V.  Illinois,  119  U.  S.  436;  Mahon  v.  Justice,  127  U.  S.  700. 

*Lascelles  v.  Georgia,   148  U.  S.  537. 


CHAPTER  IV. 

THE  RIGHTS  PROTECTED  BY  DUE  PROCESS 
OF  LAW. 

LIFE,   LIBERTY,   AND   PROPERTY. 

Chapter    'T^HE  United  states  Constitution  in  both  clauses 

IV.  I 
1        where  ''due  process  of  law"  is  mentioned, 

"inafS  provides  that  the  protection  of  due  process 

rights."  shall  embrace  "life,  liberty,  and  property."  ^  In  the 
.  Declaration  of  Independence  it  is  declared  as  self- 
evident  truth  that  all  men  "are  endowed  by  their 
Creator  with  certain  inalienable  rights,  and  that 
among  these  are  life,  liberty,  and  the  pursuit  of  hap- 
piness." Mr.  Justice  Field  has  remarked  that  the 
* '  Fourteenth  Amendment  was  intended  to  give  prac- 
tical effect  to  the  Declaration  of  1776  of  inalienable 
rights,  rights  which  are  the  gift  of  the  Creator,  which 
the  law  does  not  confer,  but  only  recognizes,"  ^  and 

1  This  trinity  of  rifrhts  can  not  be  connected  with  the  famous 
enumeration  of  the  Great  Charters  of  2  and  9  Henry  III,  de  libero 
tcnemento  suo;  vel  libertatibus,  vel  liberis  consuetudinibus.  These 
words  in  the  charter  referred  to  property  rights  alone,  while  life 
and  liberty  were  the  object  of  other  provisions  in  the  same  chapter. 
Even  as  an  enumeration  of  property  rights,  and  though  disseisie- 
tur  be  taken  in  its  early  general  and  not  in  its  late  technical  sense 
(Pollock  and  Wright  on  Possession,  47-49)  any  list  framed  in  1217 
must  have  been  thoroughly  archaic.  As  to  the  meaning  of  the 
phrase  in  Magna  Carta,  see  McKechnie,  Magna  Carta,  445,  and  the 
traditional  interpretation  of  Lord  Coke,  2  Inst.  47. 

2  Dissenting  opinion  in  Slaughter-House  Cases,  16  Wall.  (U.  S.) 
36.  See  the  remarks  of  the  same  judge,  concurring,  in  Butcher's 
Union,  etc.,  Co.  v.  Crescent  City  Live  Stock  Landing,  etc.,  Co.,  Ill 
U.  S.  746. 

138 


DUE  PROCESS  OF  LAW  139 


this  remark  would  seem  to  be  equally  applicable  to    chapter 


the  same  words  in  the  Fifth  Amendment. 

The  conservative,  practical  temper  of  judges 
nurtured  in  the  reverence  for  precedent  of  the  com- 
mon law,  has  saved  our  jurisprudence  from  deci- 
sions formed  on  speculative  or  deductive  reasoning 
from  this  enumeration  of  ' '  inalienable  rights. ' '  ^ 
*'Life,  liberty,  and  property"  have,  indeed,  been 
considered  to  embrace  these  inalienable  rights  in 
their  entirety,  and  to  comprehend  every  right  to 
which  a  member  of  the  body  politic  is  entitled  under 
the  law ;  for,  as  it  has  been  said,  the  enumeration  in 
the  constitutional  clause  is  representative  merely.^ 
But  in  practice  this  principle  of  representative  in- 
terpretation has  not  been  necessary,  and  because  of 
the  wide  meaning  given  to  the  component  members 
of  the  phrase,  the  courts  have  felt  at  liberty  to  deal 
with  each  case  as  it  arose  on  its  merits,  with  refer- 
ence to  applicable  precedents.  "By  the  term  'life,' 
as  here  used,"  said  Mr.  Justice  Field,  "something  Life, 
more  is  meant  than  mere  animal  existence.  The  in- 
hibition against  its  deprivation  extends  to  all  those 
limbs  and  faculties  by  which  life  is  enjoyed.  The 
provision  equally  prohibits  the  mutilation  of  the  body 
by  the  amputation  of  an  arm  or  leg,  or  the  putting 
out  of  an  eye,  or  the  destruction  of  any  other  organ 
of  the  body  through  which  the  soul  communicates 
with  the  outer  world.  The  deprivation  not  only  of 
life,  but  of  whatever  God  has  given  to  every  one  with 
life,  for  its  growth  and  enjoyment,  is  prohibited  by 

3  See  supra,  p.  56. 

4  State  V.  Julow,  129  Mo.  163.  See  also  Cummings  r.  Missouri, 
4  Wall.  (U.  S.)  277,  a  case  decided,  however,  before  the  passage  oi 
the  Fourteenth  Amendment. 


140  DUE  PROCESS  OF  LAW 


Chapter    the  pTOvisioii  in  question,  if  its  efficacy  be  not  frit- 


Liberty. 


tered  away  by  judicial  decision."^  ''The  'liberty' 
mentioned  in  the  Fourteenth  Amendment,"  the  Su- 
preme Court  has  said,  "means  not  only  the  right  of 
the  citizen  to  be  free  from  the  mere  physical  restraint 
of  his  person,  as  by  incarceration,  but  the  term  is 
deemed  to  embrace  the  right  of  the  citizen  to  be  free 
in  the  enjoyment  of  all  his  faculties;  to  be  free  to 
use  them  in  all  lawful  ways ;  to  live  and  work  where 
he  will;  to  earn  his  livelihood  by  any  lawful  calling; 
to  pursue  any  livelihood  or  avocation;  and  for  that 
purpose  to  enter  into  all  contracts  which  may  be 
proper,  necessary,  and  essential  to  his  carrying  out 
to  a  successful  conclusion  the  purposes  above  men- 
tioned." ^  "  Liberty,"  as  here  interpreted,  protects 
a  number  of  the  rights  embraced  within  the  guar- 

5Mimn  r.  Illinois,  94  U.  S.  113,  dissenting  opinion.  Life  within 
the  constitutional  guaranty  "  includes  the  right  of  the  individual  to 
his  body  in  its  completeness  and  without  dismemberment."  Bertholf 
V.  O'Reilly,  74  N.  Y.  509,  523. 

6  Allgeyer  v.  Louisiana,  165  U.  S.  578.  See  also  Matter  of 
Jacobs,  98  X.  Y.  98;  People  v.  Marx,  99  N.  Y.  377,  and  the  dis- 
senting opinion  of  Field,  J.,  in  Powell  v.  Pennsylvania,  127  U.  S. 
078. 

Liberty  may  lawfully  be  curtailed  to  the  point  of  endangering 
life  itself.  "  He  [a  person  or  citizen]  may  be  compelled,"  said  the 
court  in  Jacobson  r.  Massachusetts,  197  U.  S.  29,  "  by  force  if  need 
be,  against  his  will  and  without  regard  to  his  personal  wishes  or 
his  pecuniary  interests,  or  even  his  religious  or  political  convictions, 
to  take  his  place  in  the  ranks  of  the  army  of  his  country  and  risk 
the  chance  of  being  shot  down  in  its  defense." 

Historical  arguments  to  show  that  the  term  "  liberty  "  was  used 
by  English  lawyers  and  statesmen  to  refer  merely  to  personal  lib- 
erty, and  must  therefore  be  understood  in  the  Constitution  in  that 
sense,  are  given  in  an  article  on  The  Meaning  of  the  Term  "  Lib- 
erty" in  Federal  and  State  Constitutions,  by  Mr.  C.  E.  Shattuck, 
4  Harv.  L.  Rev.  3G5,  quoted  in  1  Thay.  Cas.  Const.  Law,  644,  note. 
The  matter  is  settled,  and  happily  ssettled,  in  favor  of  a  wider  con- 
struction. 


DUE  PROCESS  OF  LAW  141 

anty  of  '' property,"  in  the  same  provision.     The    Chapter 

IV. 


latter  term  includes  not  the  physical  subject-matter 
of  ownership,  but  the  right  of  possession,  dominion, 
and  disposition  over  the  subject-matter."  ''The 
right  of  property,"  said  the  Supreme  Court  of  Illi-  ^''-op^ty- 
nois,  ''preserved  by  the  Constitution,  is  the  right 
not  only  to  possess  and  enjoy  it,  but  also  to  acquire 
it  in  any  lawful  mode,  or  by  following  any  lawful  in- 
dustrial pursuit  which  the  citizen,  in  the  exercise  of 
the  liberty  guaranteed,  may  choose  to  adopt.  Labor 
is  the  primary  foundation  of  all  wealth.  The  prop- 
erty which  each  one  has  in  his  own  labor  is  the 
common  heritage.  And,  as  an  incident  to  the  right 
to  acquire  other  property,  the  liberty  to  enter  into 
contracts  by  which  labor  may  be  employed  in  such 
way  as  the  laborer  shall  deem  most  beneficial,  and 
of  others  to  employ  such  labor,  is  necessarily  includ- 
ed in  the  constitutional  g-uaranty."^ 

The  enjoyment  by  the  individual  even  of  life,  ^"ramount 
liberty,  and  property  is  always  subject  to  the  sov-  ofS/ 
ereign  needs  of  the  state,  acting  for  the  common 

7  "  In  a  strict  legal  sense,  land  is  not  '  property,'  but  the  subject 
of  property.  The  term  '  property,'  although  in  common  parlance  fre- 
quently applied  to  a  tract  of  land  or  a  chattel,  in  its  legal  significa- 
tion '  means  only  the  rights  of  the  owner  in  relation  to  it.'  *  It 
denotes  a  right  .  .  .  over  a  determinate  thing.'  '  Property 
is  the  right  of  any  person  to  possess,  use,  enjoy,  and  dispose  of  a 
thing.'  Seldon,  J.,  in  Wynehamer  v.  People,  13  N.  Y.  378-433;  1 
Blackst.  Com.  138;  2  Austin  Jurisp.,  3d  ed.,  517,  818."  Eaton  v. 
Boston,  etc.,  R.  Co.,  51  N.  H.  504. 

sBraceville  Coal  Co.  v.  People,  147  111.  66. 

Mr.  Justice  Swayne,  dissenting  in  Slaughter-House  Cases,  16 
Wall.  (U.  S.)  36,  said:  "Property  is  everything  which  has  an  ex- 
changeable value,  and  the  right  of  property  includes  the  power  to 
dispose  of  it  according  to  the  will  of  the  owner.  Labor  is  property, 
and  as  such  merits  protection.  The  right  to  make  it  available  is 
next  in  importance  to  the  rights  of  life  and  liberty." 


142 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


good  of  the  whole  people,  and  the  state  in  the  exer- 
tion of  its  sovereignty,  through  the  police  power, 
the  power  of  eminent  domain,  and  the  taxing  power, 
may  ''take"  the  rights  of  the  citizen  even  in  their 
most  perfect  forms.^  They  are  not,  therefore,  in  a 
strict  sense  "inalienable,"  nor  was  this  constitu- 
tional clause  intended  to  render  them  exempt  from 
the  control  of  the  state  acting  in  a  legal  manner, 
that  is,  according  to  "due  process  of  law."^  The 
purpose  of  the  provisions  was  to  secure  the  life,  lib- 
erty and  property  of  the  individual  from  the  action 
of  purely  personal  and  arbitrary  power,  and  to  place 
them  under  the  protection  of  "a  government  of  laws 
and  not  of  men."  ^ 


Two  defini- 
tions. 


VESTED   EIGHTS   AND   DUE   PROCESS   OF   LAW. 

The  rights  which  are  thus  within  the  protection 
of  due  process  of  law  have  been  called  "vested 
rights,"  and  a  vested  right  has  been  defined  as  a 
right  vested  in  a  citizen  "to  do  certain  actions  or  to 


9  See  infra,  p.  20  L 

In  the  Legal  Tender  Cases,  12  Wall.  (U.  S.)  547-551,  the  court 
said:  "In  a  state  of  civil  society,  property  of  a  citizen  or  subject 
is  ownership,  subject  to  the  lawful  demands  of  the  sovereign." 

1 "  If  it  [the  proposition  that  the  legislature  ought  not  to  de- 
prive parties  of  their  vested  rights]  means  that  there  are  no  cases 
in  which  the  rights  of  parties  are  not  to  yield  to  questions  of  ex- 
pediency, the  proposition  is  manifestly  false,  and  conflicts  with  the 
practice  of  every  legislature  on  earth.  In  every  case,  for  example, 
in  which  a  road  or  canal  is  run  by  authority  of  Parliament  through 
the  lands  of  private  persons,  ihe  rights,  or  vested  rights,  of  the 
private  owners  are  practically  abolished  by  the  legislature.  They 
are  compelled  to  yield  up  a  portion  of  their  rights  of  exclusion,  and 
to  receive  compensation  agreeably  to  the  provisions  of  the  Act." 
2  Austin's  Jurisprudence.  5th  ed.,  857. 

2Yick  Wo  V.  Hopkins,  118  U.  S.  356,  370,  quoting  the  last 
phrase  from  the  Massachusetts  Bill  of  Rights. 


DUE  PROCESS  OF  LAW  143 


possess  certain  things  according  to  the  law  of  the    chapter 


land. ' '  ^  Approached  from  another  point  of  view, 
a  vested  right  is  one  which  is  complete  and  consum- 
mated, so  that  nothing  remains  to  be  done  to  fix  the 
right  of  the  individual  to  enjoy  it."*  This  conception 
is  derived  from  real  property  law,  as  is  shown  by 
the  use  of  definitions  of  vested  estates  to  character- 
tize  vested  rights.  Thus,  in  Pearsall  v.  Great 
Northern  R.  Co.,^  the  Supreme  Court  of  the  United 
States  said:  "A  'vested  right'  is  defined  by  Fearne 
in  his  work  upon  Contingent  Remainders,  as  '  an  im- 
mediate, fixed  right  of  present  or  future  enjoy- 
ment;'® and  by  Chancellor  Kent  as  'an  immediate 
right  of  present  enjoyment,  or  a  present  fixed  right 
of  future  enjoyment."^  It  is  said  by  Mr.  Justice 
Cooley  that  "rights  are  vested,  in  contradistinction 
to  being  expectant  or  contingent.  They  are  vested 
when  the  right  to  enjoyment,  present  or  prospective, 
has  become  the  property  of  some  particular  person 
or  persons,  as  a  present  interest.  They  are  expect- 
ant when  they  depend  upon  the  continued  existence 

sCalder  v.  Bull,  3  Dall.   (U.  S.)   386,  per  Chase,  J. 

This  definition  has  been  repeated  by  Harrington,  J.,  in  Bailey 
V.  Philadelphia,  etc.,  R.  Co.,  4  Harr.  (Del.)  389,  400,  444  Am.  Dee. 
593,  602,  and  by  Duncan,  J.,  in  Eakin  v.  Raub,  12  S.  &  R.  (Pa.) 
330,  360.     See  also  Martindale  v.  Moore,  3  Blackf.   (Ind.)   282. 

In  Grinder  v.  Nelson,  9  Gill  (Md.)  299,  309,  52  Am.  Dee.  694, 
701,  vested  rights  are  defined  as  rights  to  which  a  person  may  ad- 
here and  upon  which  he  may  insist  without  violating  any  principle 
of  sound  morality.  As  stated,  this  definition  could  never  character- 
ize any  legal  rights,  but  the  idea  seems  to  be  the  same  as  that  given 
above. 

4  Moore  v.  State,  43  N.  J.  L.  203,  243,  244,  per  Van  Syckel,  J., 
dissenting. 

5  161  U.  S.  673. 

6  Fearne,  Cont.  Rems.  1. 
T  4  Kent  Com.  202. 


IV. 


144  DUE  PROCESS  OF  LAW 

Chapter    of  the  present  condition  of  things  until  the  happen- 

ing   of   some   future   event.     They   are    contingent 

when  they  are  only  to  come  into  existence  on  an 
event  or  condition  which  may  not  happen  or  be  per- 
formed until  some  other  event  may  prevent  their 
vesting. '  "  ^ 

The  definition  of  vested  rights  as  those  protect- 
ed by  the  law  of  the  land  is  merely  an  identical 
proposition  and  fails  to  give  their  characteristics.^ 
The  other  definitions  give  their  vital  characteristic, 
indeed,  but  seem  to  be  either  too  wide,  as  including 
rights  not  protected  by  the  Constitution  ^  or  too  nar- 
row as  confined  to  vested  rights  in  property.^  Ac- 
cepting the  words,  in  accordance  with  convenience 
and  settled  usage,  as  synonymous  with  rights  pro- 
tected by  the  law  of  the  land  or  due  process  of  law, 
the  essential  qualities  of  a  vested  right  are  that  it 
must  be  a  fundamental  right,  which  is  concerned 
with  substance  as  contrasted  with  mere  form,^  and 

sCooley,  Const.  Law,  332. 

» "  When  it  is  said  that  the  legislature  ought  not  to  deprive 
persons  of  the  '  vested  rights,'  all  that  is  meant  is  this :  that  the 
rights  styled  '  vested '  are  sacred  or  inviolable,  or  are  such  as  the 
parties  ought  not  to  be  deprived  of  by  the  legislature.  Like  a  thou- 
sand other  propositions,  which  sound  speciously  to  the  ear,  it  is 
either  purely  identical  and  tells  us  nothing,  or  begs  the  question 
in  issue."  2  Austin's  Jurisp.,  5th  ed.,  856-857.  But,  though  th« 
proposition  may  tell  nothing,  the  term  is  useful  as  a  counter  of 
thought;  and  it  tells  us  nothing,  only  if  we  are  unable  from  investi- 
gation to  find  out  the  essential  qualities  of  those  rights  with  which 
the  legislature  ought  not  to  interfere. 

1  See  Moore  v.  State,  43  N.  J.  L.  243. 

2  It  has  been  said  that  there  is  no  such  thing  as  a  vested  immu- 
nity or  exemption,  and  that  the  term  "  vested  rights  "  is  confined  to 
rights  of  property.  Weed  v.  Binghamton,  (Supm.  Ct.  Spec.  T.)  26 
Misc.  (N.  Y.)  208,  212.  But  a  personal  right,  if  sufliciently  funda- 
mental, as  the  right  to  a  hearing,  may  surely  be  called  vested. 

3  See  siipra,  p.  56. 


DUE  PROCESS  OF  LAW  145 

it  must  exist  complete  and  perfect  ^  in  a  definite    Chapter 

person,  either  over  particular  things  (vested  right  -— 

of  property)^  or  enforceable  in  favor  of  definite 
persons  whenever  in  the  future  conditions  already 
determined  shall  arise  (vested  personal  rights). 

Vested  rights  of  whatever  nature  are  open  to  at-  ^^l^'i'^^l'^' 
tack  and  impairment  through  retrospective  legis- 
lation, if  unrestrained.^  The  term  retrospective 
legislation  is  indeed  but  a  description  of  legislation 
affecting  vested  rights,  contingencies,  and  expectan- 
cies. 

VESTED  EIGHTS  AND  OTHER   CONSTITUTIONAL  GUAR- 
ANTIES. 

In  order  to  obtain  a  just  estimate  of  the  protec- 
tion afforded  to  vested  rights  by  the  due  process 
clause  in  the  Constitution,  we  must  examine  the  re- 
lations of  that  clause  to  other  specific  constitutional 
provisions  having  for  their  object  the  security  of 
individual  rights  against  arbitrary  action. 

4  "  Perfect  right "  is  sometimes  used  in  the  sense  of  a  right  not 
dependent  on  the  will  of  any  other  person.  In  this  sense  it  is  about 
equivalent  to  vested  right  in  its  wider  meaning  explained  above.  It 
is  sometimes  used  as  meaning  a  right  to  whose  vindication  the  state 
lends  its  aid  and  assistance.  Vattel,  Law  of  Nations,  Prelim.,  17. 
This  is  true  of  every  legal  right,  every  right  which  properly  comes 
within  the  field  of  law  as  distinguished  from  ethics  and  religion. 
Holland,  Jurisp.,  p.  56. 

5  In  speaking  of  vested  rights  of  property,  Mr.  Justice  Chase, 
in  Calder  v.  Bull,  3  Dall.  (U.  S.)  386,  says:  "  If  any  one  has  a  right 
to  property,  such  a  right  is  perfect  and  exclusive  right ;  but  no  one 
can  have  such  right,  before  he  has  acquired  a  better  right  to  the 
property  than  any  other  person  in  the  world." 

6 "  Upon   principle,   every  statute  which   takes   away   or   impairs 
vested  rights  acquired  under  existing  laws,  or  creates  a  new  obliga- 
tion,  imposes   a   new  duty,   or   attaches   a  new  disability  in  respect 
to   transactions    or   considerations   already   past,    must   be   deemed 
10 


14G 


DUE  PEOCESS  OF  LAW 


Chapter 
IV. 


Constiti7- 
tional  pro- 
visions. 


Bills  of  at- 
tainder. 


What  laws 
are  ex  post 

facto. 


Ex  Post  Facto  Laws  and  Bills  of  Attainder. 

The  Federal  Constitution  prohibits  Congress 
from  passing  any  bill  of  attainder  or  ex  post  facto 
law,"  and  the  same  prohibition  with  the  additional 
inhibition  of  laws  impairing  the  obligation  of  con- 
tracts exists  with  respect  to  State  action.^ 

The  nature  and  history  of  bills  of  attainder  have 
already  been  considered.^  They  are  legislative  ad- 
judications directed  against  the  past  acts  of  individ- 
uals, and  are  subject  to  all  the  objections  to  which  ex 
post  facto  laws  are  liable.  In  addition  they  confuse 
the  functions  of  the  different  departments  of  the  gov- 
ernment, and  are  wanting  in  the  quality  of  general- 
ity which  is  essential  to  the  conception  of  due 
process  of  law. 

Ex  post  facto  laws  have  been  the  subject  of  much 
discussion  in  the  courts,  and  the  meaning  of  the 
words  as  determined  in  the  early  cas6  of  C alder  v. 
Bull^  has  never  been  shaken.  Ex  post  facto  laws 
must  be  retrospective  laws  which  concern  criminal 
and  penal  matters  and  not  civil  rights;  and  every 
law  is  ex  post  facto  which  either  imposes  a  punish- 
ment for  an  act  whicli  was  not  punishable  at  the 
time  it  was  committed;  or  imposes  a  different  or 
additional  punishment  to  that  then  prescribed;  or 
changes  the  rules  of  evidence  so  that  less  or  other 

retrospective;  and  this  doctrine  seems  fully  supported  by  authorities. 
Calder  v.  Bull,  .3  Ball.  (U.  S.)  386;  Dash  v.  Van  Kleeck.  7  Johns. 
(N.  y.)  477."  Story,  J.,  in  Society,  etc.,  v.  Wheeler,  2  Gall.  (U.  S.) 
105. 

7  Const.  U.  S.,  Art.  I,  §  9,  If  3 ;  8  Fed.  Stat.  Annot.  695. 

8  Const.  U.  S.,  Art.  I,  §  10,  H  1;  8  Fed.  Stat.  Annot.  713. 

iSee  supra,  p.  64.  i  3  Dall.  (U.  S.)  386, 


DUE  PROCESS  OF  LAW  147 

testimony   is    required   to   convict   than   was    then    chapter 

required;  or  in  relation  to  the  offense  or  its  conse-  

quences  alters  the  situation  of  the  party  to  his  dis- 
advantage.2  If  the  effect  of  a  law  is  to  mitigate 
the  crime  or  the  punishment,  it  is  not  within  the 
prohibition.^  The  legislature  may,  therefore,  remit 
a  separable  portion  of  the  punishment  prescribed  by 
an  existing  law,^  and  it  has  been  said  that  if  the 
new  punishment  differs  in  kind  the  law  prescribing 
it  is  not  ex  post  facto,  if  the  change  be  of  that  nature 
which  no  sane  person  could  by  any  possibility  re- 
gard in  any  other  light  than  that  of  mitigation.^  It 
is  frequently  said  that  laws  prescribing  different 
modes  of  procedure  are  not  ex  post  facto,  but  this 
is  so  only  when  fundamental  rights  are  not  taken 
away  by  the  change  in  procedure,  and  when  the  sub- 
stantial protection  with  which  the  existing  laws  sur- 
round persons  accused  of  crime  are  left  intact  after 
the  change.^     In  order  to  escape  unconstitutionality, 

2Calder  v.  Bull,  3  Dall.  (U.  S.)  386;  Cummings  v.  Missouri,  4 
Wall.  (U.  S.)  277;  Ex  p.  Garland,  4  Wall.  (U.  S.)  333;  Kring  v. 
Missouri,  107  U.  S.  221;  Hopt  v.  Utah,  110  U.  S.  574;  Medley, 
Petitioner,  134  U.  S.  160;  Duncan  v.  Missouri,  152  U.  S.  377; 
Thompson  V.  Utah,  170  U.  S.  343;  Thompson  v.  Missouri,  171  U,  S. 
380;  Mallett  17.  North  Carolina,  181  U.  S.  589;  U.  S.  v.  Hall,  2 
Wash.   (U.  S.)   366,  26  Fed.  Cas.  No.  15,285. 

In  Fletcher  v.  Peck,  6  Cranch  (U.  S.)  87,  Chief  Justice  Marshall 
defines  an  ex  post  facto  law  as  "one  which  renders  an  act  punish- 
able in  a  manner  in  which  it  was  not  punishable  when  it  was  com- 
mitted."    But  the  change  may  be  in  the  way  of  mitigation. 

sCalder  v.  Bull,  3  Dall.  (U.  S.)  386;  Com.  v.  Wyman,  12 
Cush.    (Mass.)   237;  People  V.  Hayes,  140  N.  Y.  484. 

4  Hartung  v.  People,  22  N.  Y.  95. 

5  People  V.  Hayes,  140  N.  Y.  484.  And  see  Com,  v.  Wyman,  12 
Cush.  (Mass.)  237,  when  the  substitution  of  life  imprisonment  for 
the  death  penalty  was  held  to  be  a  mitigation. 

6  Kring  V.  Missouri,  107  U.  S.  221;  Thompson  v.  Utah,  170 
U.  S.  343;  Thompson  v.  Missouri,  171  U.  S.  380. 


148  DUE  PROCESS  OF  LAW 

Chapter    they  must  relate  to  modes  of  procedure  only,  in 

which  no  one  can  be  said  to  have  a  vested  rightJ 

The  inhibition  on  ex  post  facto  laws  has  to  deal 
with  laws  in  the  field  of  vested  rights,  but  being  con- 
fined to  criminal  and  penal  enactments,  the  rights 
within  its  sphere  are  principally  those  of  life  or 
liberty,  and  it  concerns  rights  of  property  only  as 
far  as  a  forfeiture  thereof  may  be  annexed  as  a 
punishment  to  some  criminal  act. 

Laws  Impairing  the  Obligation  of  Contracts. 

History  of  Vcstcd  rights  of  property  are  the  direct  and  only 

object  of  protection  under  the  associated  clause  in 
restraint  of  State  action,  forbidding  the  impair- 
ment of  the  obligation  of  contracts.  The  immediate 
source  of  this  famous  clause  ^  appears  in  the  Ordi- 
nance for  the  government  of  the  Northwestern  Ter- 
ritory, which  was  passed  about  two  months  before 
the  Constitution  received  its  final  shape.  The  Ordi- 
nance contained  the  provision  ''that  no  law  ought 
ever  to  be  made  or  have  force  in  the  said  territory 
that  shall  in  any  manner  whatever  interfere  with  or 
affect  private  contracts  or  engagements  bona  fide 
and  without  fraud  previously  formed."^  In  the 
Federal  Constitutional  Convention  the  subject  of 
such  a  restraint  on  the  States  is  first  mentioned  in 
Madison's  Debates,  when  Eufus  King  proposed  to  add 
to  the  prohibition  on  ex  post  facto  laws  and  bills  of 

7Hopt  V.  Utah,  no  U.  S.  574. 

8  The  conditions  which  led  to  the  adoption  of  the  clause  and  its 
effects  are  outlined  in  Edwards  v.  Kearzey,  96  U.   S.  595. 

9  This  clause  was  claimed  by  both  Dane  and  Leo,  with  proba- 
bilities perhaps  in  favor  of  the  latter.  Meigs,  Growth  Const.,  p.  183 ; 
8  Fed.  Stat.  Annot.  179. 


DUE  PROCESS  OF  LAW  149 

attainder  "  in  the  words  used  in  the  Ordinance  of    Chapter 

Congress  establishing  new  States,  a  prohibition  on  '■ — 

the  States  to  interfere  in  private  contracts. ' '  ^  This 
proposition  was  objected  to  by  some  members  as  too 
radical,  and  by  others  as  providing  for  matters  al- 
ready secured  by  the  proposed  provision  against  ex 
post  facto  laws,  which  were  treated  by  all  as  exactly 
equivalent  to  retrospective  laws.^  The  next  day, 
Aug.  29,  1787,  Mr.  Dickinson  informed  the  conven- 
tion that  he  had  examined  Blackstone's  Commen- 
taries and  he  found  that  ex  post  facto  related  to 
criminal  cases  only.^  Two  weeks  later,  on  Sept. 
14th,  the  clause  was  reported  in  substantially  its 
present  form  and  adopted. 

The    phrase    "obligation    of    contract"    savors  "PWiga- 

^  "  tion  of 

somewhat  of  the  Roman  and  civil  law,"*  and  it  has  «=°°tract" 
been  plausibly  suggested  that  the  words  are  due  to 
Judge  James  Wilson,  whose  training  as  a  Scotch 
lawyer  might  suggest  the  phraseology  to  him.^  But 
the  Federal  Supreme  Court  worked  out  the  mean- 
ing of  the  words  deductively  from  the  phrase  it- 
self.   "What,"  said  Chief  Justice  Marshall,  "is  the 

1  Madison's  Debates,  Aug.  28,  1787. 

2  Madison's  Debates,  Aug.  28,  1787.  This  is,  it  is  contended, 
the  original  meaning  of  the  phrase.  See  Mr.  Justice  Johnson  dis- 
senting in  Satterlee  v.  Matthewson,  2  Pet.  (U.  S. )  380,  and  note 
2  Pet.   (U.  S.)   681,  by  the  same  judge;  1  Hammond's  Blackst,  132. 

3  Blackstone,  it  has  been  noted,  does  not  define  the  term,  but 
merely  illustrates  it  from  the  criminal  law.  Moore  v.  State,  43 
N.  J.  L.  203;   1  Hammond's  Blackst.  132. 

4  Obligatio  is  defined  as  juris  vinculum  quo  necessitate  adstringi- 
mur  alicujus  solvendae  rei,  secundum  nostrae  civitatis  jura.  Inst. 
III.  13,  pr.  Omnis  enim  obligatio  vel  ex  contractu  nascitur,  vel  ex 
delictu.  Gaius,  Inst.  Ill,  88.  Aut  enim  [obligationes]  ex  contractu 
sunt,  aut  quasi  ex  contractu,  aut  ex  maleficio,  aut  quasi  ex  malificio. 
Inst.  Ill,  14,  3. 

5  8  Am.  L.  Rev.  197. 


150  DUE  PROCESS  OF  LAW 

Chapter    obligation  of  a  contract?  and  what  will  impair  itf 

It  would  seem  difficult  to  substitute  words  which  are 

more  intelligible  or  less  liable  to  misconstruction, 
than  those  which  are  to  be  explained.     A  contract 
is  an  agreement  in  which  a  party  undertakes  to  do, 
or  not  to  do,  a  particular  thing.    The  law  binds  him 
to  perform  his  undertaking,  and  this  is,  of  course, 
the  obligation  of  his  contract."^    In  a  later  case 
it  was  said:     ''The  obligation  of  a  contract  consists 
in  its  binding  force  upon  the  party  who  makes  it. 
This  depends  on  the  laws  in  existence  when  it  is 
made;  these  are  necessarily  referred  to  in  all  con- 
tracts and  forming  [form]   a  part  of  them  as  the 
measure  of  the  obligation  to  perform  them  by  the 
one   party,   and  the  right   acquired  by  the   other. 
There  can  be  no  other  standard  by  which  to  ascer- 
tain the  extent  of  either,  than  that  which  the  terms 
of  the  contract  indicate,  according  to  their  settled 
legal  meaning;  when  it  becomes  consummated  the 
law  defines  the  duty  and  the  right,  compels  one  party 
to  perform  the  thing  contracted  for,  and  gives  the 
other  a  right  to  enforce  the  performance  by  the 
remedies  then  in  force.  ""^ 
Construe-  To  the  obUgatiou  of  a  contract  it  is  necessary 

tion  of  °  . 

Clause.  ^Y^^i  there  be  a  meeting  of  the  minds  of  the  parties. 
Mutual  assent  to  its  terms  is  of  the  very  essence 
of  the  obligation.  Consequently  a  quasi-contraetual 
obligation  raised  by  the  law,  without  any  reference 
to  the  will  of  the  parties,  is  not  within  this  clause.^ 

eSturges  v.  Crowninshield,  4  Wheat.    (U.  S.)    122. 

TMcCracken  v.  Hayward,  2  How.  (U.  S.)  608,  j)er  Baldwin,  J., 
for  the  court. 

8  Louisiana  v.  New  Orleans,  109  U.  S.  285;  Freeland  v.  Williams, 
131  U.  S,  405;  Morley  v.  Lake  Shore,  etc.,  R.  Co.,  146  U.  S.  162, 


DUE  PROCESS  OF  LAW  151 

The  term  applies  to  executed  as  well  as  to  executory    chapter 

contracts,^  and  to  the  contracts  of  the  State  itself,^  '■ — 

such  as  the  grant  of  valuable  rights  or  franchises 
to  a  private  corporation.^  But  the  charter  of  a  cor- 
poration is  always  subject  to  the  police  powers  of 
the  State.  It  is,  therefore,  an  implied  if  not  an  ex- 
press term  of  such  contracts  that  the  rights  granted 
are  subject  to  the  condition  that  they  shall  not  be 
abused  or  so  employed  as  to  defeat  the  ends  of  the 
grant,  and  that,  when  so  abused  or  misemployed, 
they  may  be  withdrawn  or  reclaimed  by  the  State, 
in  such  way  and  by  such  modes  of  procedure  as  are 
consistent  with  law;  and  further  that  the  corpora- 
tion shall  be  subject  to  such  reasonable  regulations 
as  the  legislature  may  from  time  to  time  prescribe, 
which  do  not  materially  interfere  with  or  obstruct 
the  substantial  enjoyment  of  the  privileges  the  State 
has  granted,  but  serve  only  to  secure  the  ends  for 
which  the  corporation  was  formed.^ 

The  clause  extends  only  to  vested  rights  which 
arise  out  of  and  have  their  origin  in  contract,  and, 
under  it,  a  State  statute  can  not  be  adjudged  uncon- 
stitutional on  the  ground  merely  that  it  divests  a 
right  previously  vested.^ 

It  has  been  said  that  the  provision  was  designed 
to  protect  ''contracts  by  which  perfect  rights,  eer- 

9  Fletcher  v.  Peck,  6  Cranch   (U.  S.)   87. 

1  Fletcher  v.  Peck,  6  Cranch   (U.  S.)   87;  New  Jersey  v.  WUson, 

7  Cranch    (U.  S.)    164;  Davis  v.  Gray,   16  Wall.    (U.  S.)   203. 

2 Dartmouth  College  v.  Woodward.  4  Wheat.    (U.  S.)    518. 
3  Chicago  L.  Ins.  Co.  v.  Needles,  113  U.  S.  574.     See  also  Rich- 
mond, etc.,  R.  Co.  V.  Richmond,  96  U.  S.  521. 

iSatterlee  v.  Matthewson,  2  Pet.   (U.  S.)  380;  Watson  v.  Mercer, 

8  Pet.   (U.  S.)    110;  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet. 
(U.  S.)   420;  Peerce  v.  Kitzmiller,   19  W.  Va.  564,  573, 


152 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Existing 
laws  a  part 
of  con- 
tract. 


Relation  to 

"due  proc- 
ess" clause. 


tain  definite,  fixed  private  rights  of  property,  are 
vested."^ 

Laws  existing  at  the  time  that  a  contract  is  made 
become  a  part  of  the  contract,  as  much  as  if  they 
were  explicitly  incorporated  in  it,^  and  the  obliga- 
tion of  the  contract  is  not  impaired  or  due  process 
of  law  denied  by  the  enforcement  of  obligations 
whieh  have  attached  to  the  subject  of  the  contract 
in  accordance  with  such  laws,  although  the  value  of 
the  contract  may  be  diminished  or  destroyed."^ 

The  relations  between  this  clause  and  the  ''due 
process  of  law"  clauses  in  the  Constitution  are  par- 
ticularly clear  because,  previous  to  the  Fourteenth 
Amendment,  the  States  were  not  forbidden  to  pass 
laws  depriving  private  persons  of  due  process  of  law, 
but  were  prohibited  from  impairing  the  obligation  of 
contracts ;  while  the  federal  government  has  always 
been  restrained  by  the  due  process  clause,  but  never 
by  a  guaranty  of  the  sacredness  of  contract  rights. 
We  have  seen  that  the  States,  under  the  Constitu- 
tion as  it  stood  before  the  addition  of  the  Fourteenth 
Amendment,  were  not  prohibited  in  general  from 
retrospective  legislation^  affecting  vested  rights; 
and,  on  the  other  hand,  as  a  result  of  the  due  process 
clause,  the  United  States  can  pass  no  law  affecting 


B  Butler  t\  Pennsylvania,  10  How.   (U.  S.)  402. 

6  Von  Hoffman  v.  Qnincy,  4  Wall.    (U.  S.)   535. 

7  Provident   Sav.    Inst.   V.   Jersey   City,    113    U.    S.   506;    Lehigh 
Water  Co.  v.  Easton,  121  U.  S.  388. 

8  In  a  concurring  opinion  in  Satterlee  v.  Matthewson,  2  Pet. 
(U.  S.)  380,  Mr.  Justice  Johnson  laments  "that  unhappy  idea, 
that  the  phrase,  ex  post  facto,  in  the  Constitution  of  the  United 
States  was  confined  to  criminal  cases  exclusively;  a  decision  which 
leaves  a  large  class  of  arbitrary  legislative  acts  without  the  pro- 
hibitions of  the  Constitution." 


DUE  PROCESS  OF  LAW  153 


vested  rights,  save  as  the  power  to  do  so  results    chapter 
from  powers  conferred  either  expressly  or  by  impli-  '■ — 


cation  in  other  clauses  of  the  Constitution.  In  the 
Sinking  Fund  Cases  the  court  declared : ' '  The  United 
States  can  not,  any  more  than  a  State,  interfere  with 
private  rights  except  for  legitimate  governmental 
purposes."  ''They  are  not  included,"  it  was  said, 
"within  the  constitutional  prohibition  which  pre- 
vents States  from  passing  laws  impairing  the  obli- 
gation of  contracts,  but  equally  with  the  States  they 
are  prohibited  from  depriving  persons  or  corpora- 
tions of  property  without  due  process  of  law."^ 

AliL  LAWS   IMPAIRING   VESTED   EIGHTS    CONDEMNED 
BY  DUE   PEOCESS. 

The  principles  which  condemn  legislation  divest-  Retrospec- 
ing  fundamental  rights  of  life  and  liberty  and  rights  j-^^fs""^ 
arising  from  contract  apply  equally  to  all  classes  of  of  wn-  ^° 
vested  rights  in  property.     And  this  is  in  accord 
with  the  spirit  of  all  enlightened  jurisprudence.    The 
sweeping  maxims  of  the  Roman  jurists  in  condem- 
nation of  all  retroactive  laws  ^   were  adopted  by 

9  Sinking  Fund  Cases,  99  U.  S.  718.  The  dissenting  opinions 
of  Justices  Strong,  Bradley  and  Field  were  even  more  emphatic  on 
this  point.  These  views  are  reiterated  in  U.  S.  v.  Union  Pac.  R. 
Co.,  160  U.  S.  1,  quoting  from  the  Sinking  Fund  Cases. 

When  the  effect  of  the  exercise  of  powers  conferred  on  Congress 
either  directly  or  indirectly  is  to  impair  contract  obligations,  that 
effect  does  not  render  the  exercise  void.  Legal  Tender  Cases,  12 
Wall.    (U.  S.)  457;  Mitchell  V.  Clark,  110  U.  S.  633. 

The  doctrine  here  stated  has  been  held  to  warrant  a  retroactive 
application  of  the  United  States  bankruptcy  laws  with  regard  to 
homestead  exemptions.  In  re  Wyllie,  2  Hughes  (U.  S.)  449.  And 
see  15  Am.  and  Eng.  Eneyc.  of  Law  (2d  ed.)  613. 

1  Nemo  potest  mutare  consilium  suum  in  alterius  vnjuriam,  is  a 
maxim  of  Papinian,  Dig.  50,  17,  75.  Leges  et  constitutiones  futuris 
certum  est  dare  formam  negotiis,  non  ad  facta  praeterita  revoca/ri, 


154  DUE  PROCESS  OF  LAW 


Chapter    Bracton  in  the  thirteenth  century  and  have  been 


repeated  by  Coke  and  Bacon,^  and  applied  by  the 
English  courts  in  the  only  way  jDossible  under  an 
omnipotent  parliament;  namely,  as  a  rule  of  con- 
struction to  the  effect  that  a  statute  will  never  be 
held  to  divest  vested  rights  if  it  is  capable  of  any 
other  meaning.^  From  Roman,  English,  and  Con- 
tinental jurists,  the  same  doctrines  have  become  a 
part  of  American  constitutional  law.  Thus,  Chancel- 
lor Kent,  when  chief  justice  of  the  Supreme  Court 
of  New  York,  declared  that  ''laws  impairing  pre- 
viously acquired  civil  rights  are  equally  within  the 
reason  of  that  prohibition  [on  ex  post  facto  laws  in 
the  Federal  Constitution]  and  equally  to  be  con- 
demned. ' '  ^  Elsewhere  it  has  been  said :  "A  retro- 
active statute  partakes  in  its  character  of  the  mis- 
chiefs of  an  ex  post  facto  law,  and  when  apiolied  to 
contracts  or  property  would  be  equally  unjust  and 
unsound  in  principle  as  ex  post  facto  laws  when  ap- 
plied to  crimes  and  penalties.'"^  And  we  have  seen 
that  the  phrase  ex  post  facto  laws  in  the  Constitu- 
tion of  the  United  States  was  treated  at  first  in  the 
convention  as  equivalent  to  retrospective  laws. 
But  the  protection  of  vested  rights  so  far  as  they 
do  not  fall  within  the  scope  of  one  or  the  other  of 

nisi  nominatim;  et  de  praeterito  tempore  et  adhuc  prudentihus 
negotiis  cautum  sit.  Code  1,  14,  17.  See  Pufendorf,  Law  of  Nature 
and  Nations,  lib.  1,  c.  6,  §6;  Domat,  Civ.  Law,  Prelim.,  Title  I,  sec. 
1,  XIII. 

2  Bracton,  lib,  4,  f.  228  {nova  constitutio  futuris  formam  impo- 
nere  debet  et  non  praeteritis)  ;  Coke,  2  Inst.  292;  Bacon,  De  Aug. 
Sci.,  lib.  8,  c.  3,  aph.  47-51. 

sGilmore  v.  Shuter,  1  Vent.  330,  2  Show.  16.  2  Lev.  227,  T. 
Jones  108,  2  Mod.  310;  Couch  v.  Jeffries,  4  Burr.  2460. 

4  Dash  V.  Van  Kleeck,  7  Johns.   (N.  Y.)  477. 

0  Warren  Mfg.  Co.  v.  Etna  Ins.  Co.,  2  Paine   (U.  S.)    501. 


DUE  PROCESS  OF  LAW  155 

the  constitutional  clauses  just  discussed  rests  solely    Chapter 

on  the  provision  for  "due  process  of  law."  ^ — 

To  bring  an  enactment  within  this  clause  and  JJ^fo^ufto 
render  it  obnoxious  to  due  process  of  law,  it  is  not  es"s!^''°*'" 
sufficient  that  the  law  changes  previously  existing 
rules,  that  is,  that  it  is  retroactive  or  retrospective 
in  the  widest  sense.  Before  the  passage  of  the  Four- 
teenth Amendment,  as  has  been  seen,  the  power  of 
the  States  to  enact  retroactive  laws  not  ex  post  facto 
nor  impairing  the  obligation  of  contracts  was  well 
settled,^  even  though  such  laws  might  divest  ante- 
cedent vested  rights  of  property.^  But  one  effect  of 
the  amendment,  although  it  does  not  prohibit  retro- 
active laws  as  such  and  therefore  such  laws  are  still 
permissible,^  was  to  prohibit  all  merely  arbitrary 
interference  with  fundamental  rights,  and  among 
those  rights  are  vested  rights  of  property,  without 
regard  to  the  source,  contractual  or  otherwise,  by 
which  they  became  vested.^ 

WHAT   EIGHTS   ARE   VESTED   OR   OTHERWISE. 

Whether  rights  are  in  their  nature  so  fundamen-  d?*"- 

"  mined  as 

tal  as  to  be  within  the  due  process  clauses  of  the  Con-  *=^s^s  arise. 
stitution  can  be  determined  only,  as  has  been  point 
ed  out  already,  by  the  gradual  process  of  judicial 
exclusion    and    inclusion.    Instances    of    personal 
rights  which  have  been  held  to  be  secured  by  this 

T  Baltimore,  etc.,  R  Co.  v.  Nesbit,  10  How.  (U.  S.)  395,  401. 

8  Watson  V.  Mercer,  8  Pet.  (U.  S.)    110. 

9  League  v.  Texas,  184  U.  S.  156,  161. 

1 A  law  which  divests  a  right  vested  under  a  contract  and  so 
impairs  the  obligation  of  the  contract  is  a  deprivation  of  a  right  of 
property  and  therefore  inconsistent  with  the  due  process  clause  of 
the  Fourteenth  Amendment.     Bradley  v.  Lightcap,  195  U.  S.  1,  24. 


156  DUE  PROCESS  OF  LAW 

Chapter  clause  are  treated  later  in  connection  with  the  sub- 
ject  of  procedure.  When  a  denial  of  rights  of  lib- 
erty and  property  is  the  subject  of  complaint,  the 
attempt  to  justify  interference  always  takes  the  form 
of  a  plea  of  the  State's  sovereignty  in  the  exercise 
of  its  powers  of  taxation,  eminent  domain,  or  the 
police  power,  taking  the  last  in  its  widest  sense. 
Eights  of  liberty  and  property  will  naturally  claim 
discussion  in  connection  with  the  sovereign  powers 
mentioned. 

There  are  certain  more  or  less  definite  classes  of 
rights,  however,  which  fall  below  the  sta.ndard  of 
vested  rights.  The  first  of  these  classes  consists 
of  expectancies,  possibilities,  or  mere  contingencies, 
which  are  not  in  an  exact  sense  rights  at  all ;  ^  the 
second,  of  those  technical  legal  titles,  whose  asser- 
tion depends  on  the  insistence  on  the  requirement 
of  some  mere  matter  of  form  which  the  legislature 
might  have  dispensed  with  in  the  first  instance,  and 
may  dispense  with  by  curative  legislation,  in  favor 
of  rights  already  equitably  vested,  even  though  tech- 
nical legal  rights  are  destroyed ;  *  the  third,  of  those 

s  "  When  we  oppose  a  vested  or  present  to  a  future  or  contingent 
right,  we  are  not,  I  apprehend,  opposing  a  right  of  one  class  to  a 
right  of  another  class,  but  we  are  rather  opposing  a  right  to  a 
chance  or  possibility  of  a  right."     2  Austin's  Jurisp.,  5th  ed.,  856. 

"  A  vested  right  is  property  which  the  law  protects,  while  a 
mere  expectancy  is  not  property  and  therefore  is  not  protected." 
Hoeft  r.  Supreme  Lodge,  etc.,  113  Cal.  91,  96. 

* "  Laws  curing  defects  which  would  otherwise  operate  to  frus- 
trate what  must  be  presumed  to  be  the  desire  of  the  party  affected, 
can  not  be  considered  as  taking  away  vested  rights.  Courts  do  not 
regard  rights  as  vested  contrary  to  the  justice  and  equity  of  the 
case."     State  v.  Newark,  27  N.  J.  L.  197. 

Where  the  notes  of  unincorporated  banking  associations  were  by 
statute  made  void,  the  repeal  of  the  statute  was  held  to  have  a 
retroactive  effect,  and  to  warrant  actions  on  notes  issued  by  such 


DUE  PROCESS  OF  LAW  157 

mere  matters  of  procedure,  of  the  hoiv  a  given  de-    chapter 

mand  may  be  asserted  or  resisted,  which,  being  en '■ — 

tirely  separable  from  the  substance  of  the  demand, 
may  be  changed  by  the  legislature  at  its  will,  and 
the  new  rule  made  applicable  to  existing  causes  of 
action.  The  first  two  classes  concern  vested  rights 
of  property  only,  the  last  includes  as  well  rights  of 
life  and  liberty  as  of  property. 

Under  the  head  of  expectancies,  possibilities,  and  SanT' 
contingencies  which  do  not  rise  to  the  rank  of  vested  tTngende's. 
rights,  and  which,  therefore,  may  be  controlled  by 
statutes  passed  after  they  have,  so  far  as  their  na- 
ture permits,  accrued  to  particular  individuals,  may 
be  mentioned  the  expectation  of  a  person  that  h 
will  succeed  as  heir  to  the  fee  simple  estates  of  a 
living  ancestor  '^  or  to  his  estates  in  fee  tail ;  ^  the 
possibility  of  reverter  upon  the  dissolution  of  a  cor- 
poration;"^ a  joint  tenant's  claim  to  take  by  sur- 

associations  before  the  repeal.  Hess  v.  Werts,  4  S.  &  R.  (Pa.) 
361.  "The  object  of  the  [repealed]  act,"  said  the  court,  "was  not 
to  vest  a  right  in  any  unlawful  banking  association,  but  directly 
the  reverse.  The  motive  was  not  to  create  a  privilege  or  shield 
them  from  the  payment  of  their  just  debts,  but  to  restrain  them 
from  violating  the  law  by  destroying  the  credit  of  their  paper." 

"  There  is  no  vested  right  in  a  mode  of  procedure.  Each  suc- 
ceeding legislature  may  establish  a  different  one,  providing  only 
that  in  each  are  preserved  the  essential  elements  of  protection." 
Backus  V.  Ft.  Street  Union  Depot  Co.,  169  U.  S.  557,  570;  League 
V.  Texas,  184  U.  S.  156,  158. 

5  Randall  v.  Kreiger,  23  Wall.  (U.  S.)  137,  where  Swayne,  J., 
for  the  court,  said :  "  Until  that  event  [the  death  of  the  ancestor] 
occurs  the  law  of  descent  and  distribution  may  be  moulded  accord- 
ing to  the  will  of  the  legislature." 

6  Consequently  legislation  declaring  existing  estates  tail  changed 
to  fee  simple  estates  is  valid.  De  Mill  v.  Lockwood,  3  Blatchf. 
(U.  S.)   63.     And  see  Croxall  v.  Shererd.  5  Wall.    (U.  S.)    268. 

7  Bass  V.  Roanoke  Nav.,  etc.,  Co.,  Ill  N.  Car.  439. 


158  DUE  PROCESS  OF  LAW 

Chapter    vivorship  property  held  in  joint  tenancy ;  *  and  a 

wife's  expectation  of  dower  in  her  husband's  lands 

so  long  as  the  husband  is  alive.^ 
Curative  Wherevcr  any  proceeding  might  have  been  au- 

thorized in  advance  by  the  legislature,  that  proceed- 
ing may  be  validated  by  a  retrospective  act,  curing 
the  irregularities  in  the  original  proceeding.^  The 
claim  of  a  party  to  such  original  proceeding,  because 
of  its  irregularity,  to  insist  on  titles  which,  but  for 
that  irregularity,  would  have  passed  to  others,  is 
not  a  vested  right  which  the  Constitution  protects, 
and  is  inferior  to  the  equitable  rights  acquired  under 
the  proceeding  validated.-  But  the  rights  of  third 
persons,  which  depend  on  the  invalidity  of  the  orig- 
inal proceeding  and  were  acquired  bona  fide  before 
the  passage  of  the  curative  statute,  are  vested,  and 
as  to  them  the  statute  is  inoperative.^ 

sHolbrook  r.  Finney,  4  Mass.  568;  Miller  v.  Miller,  16  Mass.  59; 
Miller  v.  Dennett,  G  N.  H.  109  (where  the  court  said:  "Neither 
[joint  tenant]  had  any  vested  interest  in  the  moiety  of  the  other. 
The  acquisition  of  the  whole  estate  by  survivorship  would  have  been 
in  either  nothing  more  than  a  hope  or  expectation,  like  the  expec- 
tation of  a  child  to  inherit  the  estate  of  a  parent")  ;  Bambaugh  V. 
Bambaugh,  11  S.  &  R.  (Pa.)  191.  But  compare  Greer  v.  Blanchar, 
40  Cal.  194;  Den  v.  Van  Riper,  16  N.  J.  L.  7,  in  which  cases  a 
different  conclusion  was  reached. 

9  Randall  r.  Kreiger,  23  Wall.    (U.  S.)    148. 

1  Thomson  r.  Lee  County,  3  Wall.  (U.  S.)  327;  St.  Joseph  Tp.  v. 
Rogers,  16  Wall.  (U.  S.)  644;  Thompson  V.  Perrine,  103  U.  S.  806. 
And  see  McFaddin  v.  Evans-Snider-Buel  Co.,  185  U.  S.  505. 

2Raverty  v.  Fridge,  3  McLean  (U.  S.)  230;  Barton  v.  Morris, 
15  Ohio  408;  Chestnut  v.  Shane,  16  Ohio  599.  See  also  New  Orleans 
V.  Clark,  95  U.  S.  644. 

The  validity  of  curative  acts  validating  defective  acknowledg- 
ments has  been  said  to  be  sustainable  only  on  the  ground  that  not 
the  contract,  but  the  mode  of  its  proof,  is  affected.  Journeay  r.  Gib- 
son, 56  Pa.  St.  57. 

3  Brinton  v.  Seevers,  12  Iowa  389 ;  Barrett  v.  Barrett,  120  N.  Car. 
127. 


DUE  PROCESS  OF  LAW  159 


Chapter 
PBOCEDURE.  IV. 


What  the  Term  Covers. 

Procedure,  frequently  called  "adjective  law,"  is  JS?n|, 
a  word  of  wide  scope,  admitted  as  a  technical  legal  practfc"' 
term  only  within  recent  years.  In  1883,  the  Su- 
preme Court  of  the  United  States  declared  that,  as 
a  law  term,  the  word  "procedure"  was  not  well 
understood.  The  court,  however,  said  further: 
"Fortunately  a  distinguished  writer  on  criminal 
law  in  America  has  adopted  it  as  the  title  to  a 
work  of  two  volumes  —  Bishop  on  Criminal  Proced- 
ure. In  his  first  chapter  he  undertakes  to  define 
what  is  meant  by  procedure.  He  says  (sec.  2) : 
'The  term  procedure  is  so  broad  in  its  signification 
that  it  is  seldom  employed  in  our  books  as  a  term  of 
art.//  It  includes  in  its  meaning  whatever  is  em- 
braced by  the  three  technical  terms  —  pleading, 
evidence,  and  practice.'/  And  in  defining  'prac- 
tice' in  this  sense,  he  says:  'The  word  means  those 
legal  rules  which  direct  the  course  of  proceeding  to 
bring  parties  into  the  court  and  the  course  of  the 
court  after  they  are  brought  in ; '  and  '  evidence, '  he 
says,  as  a  part  of  procedure,  'signifies  those  rules 
of  law  whereby  we  determine  what  testimony  is  to 
be  admitted  and  what  rejected  in  each  case,  and 
what  is  the  weight  to  be  given  to  the  testimony  ad- 
mitted.'"^ Since  this  discussion  of  the  meaning 
of  "procedure"  was  written,  the  term  has  come  into 
general  use,  and  it  can  no  longer  be  said  that  it  is 
not  well  understood. 

i  Kring  v.  Missouri,  107  U.  S.  231,  per  Miller,  J. 


.    St-' 


160 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Generally 
subject  to 
state  only. 


Adminis- 
tration 
presumed 
constitu- 
tional. 


The  whole  subject  of  procedure  is  in  the  control 
of  the  legislature  and  of  the  courts  acting  in  con- 
formity with  the  laws.^  Such  expressions  are  fre- 
quent as  that  ''there  is  no  vested  right  in  a  mode  of 
procedure;"^  ''no  party  has  a  vested  right  to  a 
particular  remedy;"^  "a  right  to  have  one's  con- 
troversies determined  by  existing  rules  of  evidence 
is  not  a  vested  right.  "^  But  every  announcement 
so  broad  as  these  must  be  taken  subject  to  limita- 
tions, and  the  limitation  to  legislative  and  judicial 
control  is  that  the  regulation  of  procedure  must  not 
affect  fundamental  rights.  In  a  recent  case,  the 
Federal  Supreme  Court  declared  that  "the  State 
has  full  control  over  the  procedure  in  its  courts, 
both  in  civil  and  in  criminal  cases,  subject  only  to  the 
qualification  that  such  procedure  must  not  work  a 
denial  of  fundamental  rights,  or  conflict  with  specific 
and  applicable  provisions  of  the  Federal  Constitu- 
tion."^ 

A  denial  of  fundamental  rights  will  not,  of 
course,  be  presumed,  and  when  the  record  shows  no 
denial,  it  will  not  be  assumed  that  the  court  o^  its 
officers  abused  the  powers  confided  to  them,\Jnor 

I,  5  The  State  has  full  power  over  remedies  and  procedure  in  its 
own  courts. 5  York  V.  Texas,  137  U.  S.  20;  Hooker  v.  Los  Angeles, 
188  U.  S.  314. 

6  League  v.  Texas,  184  U.  S.  156,  158;  Backus  v.  Fort  St.  Union 
Depot  Co.,  169  U.  S.  557,  570;  Hopt  v.  Utah,  110  U.  S.  574.  See 
also  Louisville,  etc.,  R.  Co.  v.  Schmidt,  177  U.  S.  230. 

7  Cora.  V.  Highway  Com'rs,  6  Pick.  (Mass.)  508,  per  Parker,  C.  J.; 
6  Am.  and  Eng.  Encyc.  of  Law   (2d  ed.)   947;  26  id.  949. 

8  Kent  V.  Gray,  53  N.  H.  576,  citing  Cooley,  Const.  Lim.  367; 
Tabor  v.  Ward,  83  N.  Car.  291.  See  6  Am.  and  Eng.  Encyc.  of  Law, 
(2ded.)  950;  26  id.  749. 

9  Brown  v.  New  Jersey,  175  U.  S.  175;  West  v.  Louisiana,  194 
U.  S.  263. 

iLowe  V.  Kansas,  163  U.  S.  81;  Simon  v.  Craft,  182  U.  S.  436. 


DUE  PE0CES3  OF  LAW  161 

can  denial  of  due  process  of  law  be  founded  on  the    chapter 

claim  that  a  person  was  denied  the  right  to  present  '■ — 

defenses  which  he  never  in  fact  asserted,  when  every 
defense,  actually  presented  was  considered  by  the 
court;  J  nor  by  a  decision  on  a  question  of  general 
law,  as  that  libellous  statements  in  pleadings  are  ab- 
solutely privileged ;  ^  nor  by  the  admission  of  the 
deposition  of  an  absent  witness  against  the  defend- 
ant in  a  criminal  trial,  although  by  the  common  law 
the  evidence  may  be  inadmissible ;  ^  nor  by  the  ac- 
tion of  the  court  in  denying  a  motion  to  set  aside  a 
submission  of  the  case ;  ^  nor  by  the  refusal  of  the 
court  to  permit  amendments  to  the  pleadings  or  the 
filing  of  supplementary  pleadings.® 

A  State  statute  providing  that  a  special  admin- 
istrator, appointed  pending  a  contest  over  the  will 
or  the  right  to  act  as  representative,  shall  settle  with 
the  executor  or  administrator  with  the  will  annexed, 
without  giving  notice  to  distributees,  and  that  such 
settlement  shall  be  conclusive  in  the  absence  of  fraud 
does  not  work  a  deprivation  of  property  without 
due  process.  In  the  settlement  with  the  special  ad- 
ministrator, the  regular  representative  represents 
all  interests,  and  upon  his  final  settlement  all  inter- 
ested parties  are  entitled  to  notice.  This  satisfies 
the  constitutional  provision.'^ 

Where  a  remedy  is  universally  recognized,  its 
application  retrospectively  by  virtue   of  a   subse- 

2  Louisville,  etc.,  R.  Co.  v.  Schmidt,  177  U.  S.  230. 

3  Abbott  v.  Tacoma  Bank  of  Commerce,  175  U.  S.  409. 

4  West  V.  Louisiana,   194  U.  S.  258. 

5  Thorington  v.  Montgomery,   147  V.  S.  490. 

6  Stevens   v.   Nichols,    157   U.   S.   370;    Sawyer   v.   Piper,   189  U. 
S.  154. 

7  Robards  v.  Lamb,  127  U.  S.  58. 

11 


162  DUE  PROCESS  OF  LAW 

Chapter  q^ent  enactment  to  rights  not  vested  is  not  a  depri- 
" vation  of  due  process  of  law.  A  judgment  for  dam- 
ages in  tort  for  an  act  committed  under  military  au- 
thority during  the  civil  war  between  the  States  was 
held  to  vest  no  rights  in  the  plaintiff,  and,  when  the 
constitution  of  the  State  where  the  judgment  was  re- 
covered declared  that  no  one  should  be  liable  civilly 
or  criminally  for  such  acts,  an  injunction  against  ex- 
ecution on  a  judgTnent  previously  recovered  for  this 
cause  was  held  to  be  due  process.^  The  provision 
in  the  State  constitution,  said  the  court,  ''reme- 
dies the  defects  of  the  proceeding  by  bill  in  chan- 
cery ;  it  creates  no  new  process  of  law ;  it  makes  that 
which  has  always  been  due  process  of  law  efficient 
by  removing  obstacles  and  obstructions  to  its  opera- 
tion. It  simply  declares  that  a  judgment  for  a 
wrong  or  tort,  which  in  itself  was  erroneous,  is  a 
voidable  judgment,  and  may  be  avoided  if  it  can  be 
brought  within  the  due  processes  of  law  already 
existing."  ^ 

Tribunal  Before  Which  Trial  Is  Had. 

Jeier?ny  The  charactcr  of  the  tribunal  before  which  the 

i^caiYaw.  trial  of  a  question  involving  life,  liberty,  or  prop- 
erty is  to  be  had,  may,  in  the  absence  of  specific 
constitutional  provisions,  be  regarded  as  a  question 
of  procedure,  depending  on  the  lex  fori.  Thus  the 
right  to  and  the  mode  of  jury  trial  in  both  civil  ^ 

sFreeland  v.  Williams,  131  U.  S.  405. 

oFreeland  v.  Williams,  131  U.  S.  419,  420.  See  also  Peerce  v. 
Kitzmiller,  19  W.  Va.  564. 

1  Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  (U.  S.)  280; 
W'alker  v.  Sauvinet,  92  U.  S.  90;  Church  v.  Kelsey,  121  U.  S.  282; 
Marvin  v.  Trout,  199  U.  S.  212;  Wilson  v.  North  Carolina,  169  U.  S. 


DUE  PROCESS  OF  LAW  163 


and  criminal  cases,^  and  the  riglit  to  indictment  by    Chapter 


bunal. 


a  grand  jury  in  criminal  cases,^  are,  as  has  been 
repeatedly  determined,  questions  to  be  decided  by 
the  States  under  their  own  constitutions  and  laws, 
though  specific  clauses  of  the  Federal  Constitution 
guarantee  jury  trial  and  grand  juries  in  the  United 
States  courts."* 

Duties  judicial  or  g-wasi- judicial  may  be  devolved  ^Sve'td- 
by  law  on  boards  or  officers  of  an  administrative  or 
executive  character,  and  their  decisions  of  the  ques- 
tions submitted  to  them  made  final.  In  a  case  in- 
volving the  finality  of  the  determination  of  a  State 
medical  board  the  United  States  Supreme  Court 
said:  ''We  know  of  no  provision  in  the  Federal 
Constitution  which  forbids  a  State  from  granting  to 
a  tribunal,  whether  called  a  court  or  a  board  of  reg- 
istration, the  final  determination  of  a  legal  ques- 
tion. Indeed,  it  not  infrequently  happens  that  a 
full  discharge  of  their  duties  compels  boards  or 
officers  of  a  purely  ministerial  character  to  consider 
and  determine  questions  of  a  legal  nature.  .  Due 
process  is  not  necessarily  judicial  process."  ^  Thus 
the  issue  of  the  sanity  of  the  accused  after  verdict 
may   be   determined  by   administrative   or   quasi- 

586,  holding  a  proceeding  by  quo  warranto  without  jury  to  re- 
move a  public  officer  to  be  due  process. 

2Hallinger  v.  Davis,  146  U.  S.  314;  Brown  v.  New  Jersey,  175 
U.  S.  175;  Maxwell  r.  Dow,  176  U.  S.  581. 

sHurtado  v.  California,  110  U.  S.  538;  Caldwell  v.  Texas,  137 
U.  S.  692;  McNulty  v.  California,  149  U.  S.  648;  Talton  V.  Mayes, 
163  U.  S.  376,  382;  Hodgson  v.  Vermont,  168  U.  S.  272;  Bolln  v. 
Nebraska,  176  U.  S.  86;  Maxwell  v.  Dow,  176  U.  S.  581;  Davis  v. 
Burke,  179  U.  S.  404. 

4  Amendm.  V,  VI,  VII;  9  Fed.  Stat.  Annot,  256  et  seq.;  Amer.  Pub. 
Co.  V.  Fisher,  166  U.  S.  464 ;  Thompson  V.  Utah,  170  U.  S.  343. 

5  Reetz  V.  Michigan,  188  U.  S.  507. 


164  DUE  PROCESS  OF  LAW 

Chapter    administrative  process,  and  need  not  be  tried  "by 

a  jury  in  a  judicial  proceeding  surrounded  by  all 

the  safeguards  and  requirements  of  a  common-law 
jury  trial;''  it  is  purely  a  matter  of  legislative 
regulation  within  the  control  of  the  State.^ 

Whether  jurisdiction  over  particular  classes  of 
cases  is  vested  in  one  tribunal  or  another  is  thus 
seen  to  be  a  question  of  local  law,  and  there  is  no 
provision  of  the  Federal  Constitution  prohibiting 
the  State  legislature  from  distributing  jurisdiction 
as  it  sees  fit  among  courts  and  other  tribunals.*^*  Yet 
it  should  be  observed  that  a  state  statute  creating 
"a  court  of  visitation"  empowered  to  make  rates 
for  telegraph  and  railroad  companies  and  to  enter- 
tain judicial  proceedings  to  determine  the  reason- 
ableness of  the  rates  was  held  by  a  federal  circuit 
court  to  be  unconstitutional  as  denying  due  process 
of  law.  It  was  considered  that  no  hearing  before 
such  a  body  could  fulfil  the  constitutional  require- 
ment, because  of  the  mingling  of  executive  and  judi- 
cial functions  in  the  powers  of  the  ' '  court. ' '  ^ 

Procedure  in  Criminal  Cases. 

In  criminal  trials  certain  matters  pertaining  to 
procedure  have  been  declared  to  involve  funda- 
mental rights,  of  which  the  person  accused  of  crime 

6  Nobles  V.  Georgia,  1(58  U.  S.  405. 

6*  See  Church  v.  Kelsey,  121  U.  S.  282 ;  Duncan  v.  Missouri,  152 
U.  S.  377;  Dreyer  v.  Illinois,  187  U.  S.  84;  Rogers  v.  Peck,  199  U.  S. 
425. 

7  Western  Union  Tel.  Co.  r.  Myatt,  98  Fed.  Rep.  335.  The  court 
in  this  instance  relied  largely  on  decisions  of  the  supreme  court  of 
the  State  whose  legislation  was  under  consideration.  See  In  re  Sims, 
54  Kan.  1 ;  Auditor  v.  Railroad  Co.,  6  Kan.  500. 


DUE  PROCESS  OF  LAW  165 


may  not  be  deprived  without  the  denial  of  due  proc-    Chapter 


ess  of  law,  while  others  are  matters  of  form  only. 
Generally,  whatever  matters  are  jurisdictional  are 
essential  and  jjrotected  by  the  Constitution;  mat- 
ters which  do  not  affect  the  competency  of  the  court 
are  not  jurisdictional  and  are  not  protected. 

Under  the  provision  of  due  process  of  law  in  the  Entering 

■■■  ^  plea  essen- 

Fifth  Amendment  to  the  United  States  Constitution  **^^' 
it  has  been  held  that  due  process  requires  the  defend- 
ant to  plead  or  have  a  plea  entered  for  him.  Upon 
this  point  the  Federal  Supreme  Court  has  said: 
"Due  process  of  law  requires  that  the  accused 
plead,  or  be  ordered  to  plead,  or,  in  a  proper  case, 
that  a  plea  of  not  guilty  be  filed  for  him,  before  his 
trial  can  rightfully  proceed;  and  the  record  of  his 
conviction  should  show  distinctly,  and  not  by  infer- 
ence merely,  that  every  step  involved  in  due  process 
of  law,  and  essential  to  a  valid  trial,  was  taken 
in  the  trial  court;  otherwise  the  judgment  will  be 
erroneous."  ^* 

So,  also,  under  the  same  provision,  the  right  of  fu^f^""^^ 
a  person  accused  of  felony  to  be  present  during  the  *"^'" 
whole  of  the  trial  in  the  trial  court,  is  a  substantive 
right  of  which  he  can  not  be  deprived  without  due 
process  of  law,  even  with  his  consent.^  In  a  case 
wherein  it  was  determined  that  the  presence  of  the 
accused  during  the  trial  of  challenges  of  proposed 
jurors  was  essential  under  the  statutes  of  the  Ter- 
ritory of  Utah,  the  court  said:     ''His  [the  prison- 

7*  Grain  v.  U.  S.,  162  U.  S.  625. 

8  Lewis  V.  U.  S.,  146  U.  S.  372.  But  see  Trono  v.  U.  S.,  199 
U.  S.  521,  which  perhaps  weakens  the  direct  authority  against  the 
right  to  waive  the  privilege,  where  presence  is  not  made  compulsory 
by  statute. 


166  DUE  PROCESS  OF  LAW 


Chapter    er's]  life  or  liberty  may  depend  upon  the  aid  which, 


—  by  his  personal  presence,  he  may  give  to  counsel 
and  the  court  and  triers  in  the  selection  of  jurors. 
The  necessities  of  the  defense  may  not  be  met  by 
the  presence  of  his  counsel  only.  For  every  pur- 
pose, therefore,  involved  in  the  requirement  that 
the  defendant  shall  be  personally  present  at  the 
trial,  where  the  indictment  is  for  a  felony,  the  trial 
commences  at  least  from  the  time  when  the  work  of 
impaneling  the  jury  begins."  \  After  showing  that 
the  accused  may  not  waive  this  privilege,  because 
the  public,  as  well  as  himself,  has  an  interest  in  the 
legality  of  his  conviction,  the  court  proceeded: 
*'That  which  the  law  makes  essential  in  proceedings 
involving  the  deprivation  of  life  or  liberty  can  not 
be  dispensed  with,  or  affected  by  the  consent  of  the 
accused,  much  less  by  his  mere  failure,  when  on  trial 
and  in  custody,  to  object  to  unauthorized  methods. 
!^  .  .  The  legislature  has  deemed  it  essential  to 
the  protection  of  one  whose  life  or  liberty  is  in- 
volved in  a  prosecution  for  felony  that  he  shall  be 
personally  present  at  the  trial ;  that  is,  at  every  stage 
of  the  trial  when  his  substantial  rights  may  be  af- 
fected by  the  proceedings  against  him.  If  he  be  de- 
prived of  his  life  or  liberty  without  being  so  present, 
such  deprivation  would  be  without  that  due  process 

[joi  law  required  by  the  Constitution."  ^*  The  right 
to  be  present  during  trial  is  confined  to  presence  in 
the  trial  court  and  does  not  extend,  either  in  courts 
of  the  United  States  or  in  those  of  the  States,  to 
presence  in  an  appellate  court;  and  so,  when,  upon 
affirming  the  judgment  below,  the  date  of  execution 

8*Hopt  V.  Utah,  110  U.  S.  574. 


DUE  PROCESS  OF  LAW  167 

is  settled,  in  accordance  with  the  law,  by  the  appel-    chapter 

late  tribunal,  the  accused  can  not  complain  that  such  

date  was  fixed  in  his  absence.^ 

These  principles,  as  to  the  positive  rights  which  durin^^ 
are  within  due  process  of  law,  were  established  in  FoSmemh 
cases  which  involved  the  meaning  of  that  term  in  ment. 
the  Fifth  Amendment  to  the  United  States  Constitu- 
tion, and  we  have  no  direct  adjudication  as  to 
whether  the  right  of  pleading  or  the  right  of  the 
accused  to  be  present  at  the  trial  is  guaranteed,  as 
against  the  States,  by  the  due  process  clause  of  the 
Fourteenth  Amendment.  The  Federal  Supreme 
Court  has  again  and  again  declared  that  when  the 
highest  court  of  a  State  has  acted  within  its  jurisdic- 
tion and  in  accordance  with  its  construction  of  the 
State  constitution  and  laws,  very  exceptional  circum- 
stances will  be  necessary  in  order  that  the  Federal 
Supreme  Court  may  feel  justified  in  saying  that  there 
has  been  a  failure  of  due  process  of  law.  ''We  might 
ourselves  have  pursued  a  different  course,  but  that  is 
not  the  test.  The  plaintiff  in  error  must  have  been 
deprived  of  one  of  those  fundamental  rights,  the  ob- 
servance of  which  is  indispensable  to  the  liberty  of 
the  citizen,  to  justify  our  interference."^  For  es- 
pecially in  cases  involving  procedure,  is  it  true 
that  ''due  process  of  law  means  law  in  its  regular 
course  of  administration  through  courts  of  jus- 
tice." 2 

9  Schwab  V.  Berggren,  143  U.  S,  442;  Fielden  v.  Illinois,  143  U. 
S.  452. 

1  Allen  V.  Georgia,  166  U.  S.   138,  quoted  with  approval  in  Wil- 
son V.  North  Carolina,  169  U.  S.  586. 

2  Caldwell  v.  Texas,   137   U.  S.  692.     In  Miller  v.  Texas,   153  U. 
S.  535,  the  court  said :     "  As  the  proceedings  were  conducted  under 


168  J^Li:  PKOCESS  OF  LAW 

Chapter  TliesG  principles  are  illustrated  in  many  deci- 

sions.     Due  process  of  law  under  the  Fourteenth 

ornfa"tefs    Amendment  has  been  held  not  to  be  involved  in  a  de- 

held  not  to 

involve       cision  by  a  State  court  that  certain  acts  constituted 

due  proc-  *' 

^'^•"  an  offense  indictable  at  the  common  law.^     So  the 

sufficiency  of  the  indictment  to  charge  a  specific  of- 
fense/ or  the  existence  of  defects  in  the  indictment 
and  their  waiver  by  the  defendant,^  are  matters  for 
the  determination  of  the  State  court  and  involve  no 
federal  question.  Nor  is  there  any  deprivation  of 
due  process  of  law  by  a  trial  and  conviction  before  a 
judge  de  facto  of  a  court  de  jure,  the  sentence  pro- 
nounced being  valid ;  ^  nor  by  a  trial  by  a  jury  one 
member  of  which  was  an  alien,  objection  not  having 
been  taken  in  proper  time  under  the  statutes  of  the 
State ;  ^  nor  by  the  entry  of  a  nolle  prosequi  as  to 
those  counts  in  an  indictment  of  several  counts  upon 
which  the  jury  were  unable  to  reach  an  agreement ;  ^ 
nor  by  the  action  of  a  State  court  in  dismissing  the 
defendant's  appeal,  because  of  his  escape  from  jail 
and  failure  to  surrender  himself  according  to  the 
order  of  the  court  within  a  certain  time ;  ^  nor  by 
the  action  of  a  State  appellate  court  in  dismissing 
a  writ  of  habeas  corpus,  when  the  committing  court 

the  ordinary  forms  of  criminal  prosecutions,  there  certainly  was  no 
denial  of  due  process  of  law."     See  supra,  p.  52. 

3  Howard  v.  Fleming,  191  U.  S.  126. 

*  Caldwell  v.  Texas,  137  U.  S.  692;  Leeper  v.  Texas,  139  U.  S. 
462;  Davis  v.  Texas,  139  U.  S.  651;  In  re  Robertson,  156  U.  S.  183; 
Bergeman  v.  Backer,  157  U.  S.  655 ;  Kohl  v.  Lehlback,  160  U.  S.  297 ; 
Howard  v.  Fleming,  191  U.  S.  126, 

5  O'Neil  V.  Vermont,  144  U.  S.  323. 

8  In  re  Manning,  139  U.  S.  506. 

T  Kohl  V.  Lehlback,  160  U.  S.  297. 

8  Cross  V.  North  Carolina,  132  U.  S.  131. 

»  Allen  V.  Georgia,  166  U.  S.  138. 


DUE  PROCESS  OF  LAW  169 

had  jurisdiction  and  the  commitment  was  not  void.    Chapter 

IV. 

Habeas  corpus  cannot  be  availed  of  as  a  writ  of  

error  or  appeal.^ 

Questions  which  concern  the  authority  by  which  ofsen.''°" 
and  the  manner  in  which  sentences  shall  be  carried 
into  execution  are  questions  of  local  law  and  their 
decision  is,  in  ordinary  course,  for  the  State  courts 
alone.^ 

/  The  right  to  appeal  from  a  judgment  of  convic-  £peai?^ 
tion  for  crime  is  not  a  necessary  element  of  due 
process  of  law./  ''It  is  therefore  clear  that  the  right 
of  appeal  may  be  accorded  by  the  State  to  the  ac- 
cused, upon  such  terms  as  in  its  wisdom  may  be 
deemed  proper,"  and  this  is  a  matter  which  each 
State  must  determine  for  itself.^ 

Proceedings  for  Contempt. 


Inherent 
power  to 


The  power  to  punish  summarily  for  contempt  is 
inherent  in  superior  courts.  When  the  contempt  is  lonllm^t. 
directly  in  the  presence  of  the  court,  the  court  may 
inflict  punishment  and  may  do  so  without  hearing 
or  trial.'*  Even  in  cases  of  indirect  or  of  civil 
contempts,  no  particular  method   of  procedure   is 

1  Tinsley  v.  Anderson,  171  U.  S.  101. 

-  In  re  Kemmler,  136  U.  S.  436  (law  for  execution  by  electricity)  ; 
Holden  v.  Minnesota,  137  U.  S.  495  (time  of  execution  to  be  fixed 
by  the  governor)  ;  Lambert  V.  Barrett,  157  U.  S.  697,  159  U.  S.  660 
(legality  of  governor's  sentence  after  reprieve)  ;  Craemer  v.  Wash- 
ington, 168  U.  S.  124;  Rogers  V.  Peck,  199  U.  S.  425. 

3  McKane  v.  Durston,  153  U.  S.  684 ;  Andrews  V.  Swartz,  156  U. 
S.  272 ;  Kohl  V.  Lehlback,  160  U.  S.  297 ;  Murphy  v.  Massachusetts, 
177  U.  S.  155.     And  see  Duncan  v.  Missouri,  152  U.  S.  377. 

^Ex  p.  Terry,  128  U.  S.  289.  The  court  may  issue  citation  to 
show  cause  why  punishment  should  not  be  inflicted  for  contempt, 
but  no  service  of  interrogatories  is  necessary.  Savin,  Petitioner,  131 
'U.  S.  267. 


170 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Hearing  in 
cases  of 
civil  con- 
tempt. 


required  in  the  absence  of  statute.^  The  court  may- 
proceed  summarily  by  motion  to  show  cause  and  a 
hearing  on  affidavits  to  punish  by  fine  and  imprison- 
ment. If  the  right  to  notice  and  hearing  is  substan- 
tially protected,  "such  proceeding  is  due  process  of 
law,  and  always  has  been  due  process  of  law,  and  is 
the  process  or  proceeding  by  which  courts  have 
from  time  immemorial  enforced  the  execution  of 
their  orders  and  decrees,  and  can  not  be  said  to 
deprive  the  i3arties  of  their  liberty  or  property 
without  due  process  of  law."  ^ 

But  the  right  to  notice  and  hearing  in  such  cases 
must  be  preserved,  nor  can  the  contemnor's  property 
be  arbitrarily  given  to  another  as  a  punishment  for 
his  contempt.  In  a  case  wherein  the  trial  court  to 
punish  the  defendant  for  a  contempt  in  refusing  to 
obey  an  order  of  the  court,  ordered  his  answer  to  be 
stricken  from  the  files  and  a  decree  to  be  entered 
against  him  pro  confesso,  it  was  held  that  the  decree 
was  void.  Though  jurisdiction  had  been  obtained 
by  service  of  summons,  striking  out  the  defendant's 
answer  and  rendering  judgment  against  him  was  a 
denial  of  his  right  to  a  hearing  before  condemjia- 
tion  which  is  fundamental  in  the  very  conception  of 
a  court  of  justice.  The  judgment,  moreover,  in 
effect  transferred  property  of  the  defendant  to  the 
plaintiff  arbitrarily  and  without  due  process  of  law. 


5  When  the  court  does  not  have  personal  kno^Tledge  of  the  con- 
tempt, the  usual  process  is  by  order  to  show  cause.  Savin.  Peti- 
tioner. 131  U.  S.  277;  Cuddy  Petitioner,  131  U.  S.  280. 

6  Miller,  J.,  for  the  court  in  Eilenbecker  r.  District  Ct..  134  U.  S. 
31.  To  the  same  effect,  see  Interstate  Commerce  Commission  V. 
Brimson,  154  U.  S.  447 ;  In  re  Debs,  158  U.  S.  564 ;  Tinsley  v.  An- 
derson, 171  U.  S.   101. 


DUE  PROCESS  OF  LAW  171 

The  exercise  of  the  power  arbitrarily  assumed  was    Chapter 


IV. 


held  to  be  without  jurisdiction  and  the  judgment 
subject  to  collateral  attackJ 

Closely  analogous  to  the  power  of  the  court  to  Sn'eys.^ 
punish  for  contempt  is  its  power  summarily  to  dis- 
bar or  suspend  an  attorney  entitled  to  practice  be- 
fore it  for  gross  misconduct  affecting  his  profes- 
sional character.  Such  a  summary  proceeding  has 
been  held  by  the  Federal  Supreme  Court  civil  in 
nature  and  not  criminal.  It  is  a  regular  and  lawful 
method  of  proceeding  within  the  jurisdiction  of  the 
court  practiced  from  time  immemorial  and  consti- 
tutes due  process  of  law.^ 

Statutes  of  Limitations. 
Statutes  of  limitation  are  usually  treated  as  laws  R'ghtto 

^  future  lira- 

of  procedure  affecting  the  remedy  only  and  not  the  vested. "°' 
right.^  A  statute  of  limitations  affecting  existing 
causes  of  action  is  not  unconstitutional  either  as  im- 
pairing contracts  or  denying  due  process  of  law, 
provided  a  time  reasonable,  taking  into  considera- 
tion the  nature  and  circumstances  of  the  case,  is  al- 
lowed for  bringing  action  after  the  passage  of  the 
statute  and  before  the  bar  takes  effect.^     iWith  the 

7  Hovey  v.  Elliott,  167  U.  S.  409. 

^Ex  p.  Wall,  107  U.  S.  265.  And  see  Ex  p.  Burr,  9  Wheat.  (U. 
S.)  529,  2  Cranch  (C.  C.)  379;  Ex  p.  Secombe,  19  How.  (U.  S.)  9; 
Ex  p.  Bradley,  7  Wall.  (U.  S.)  364;  Randall  v.  Brigham,  7  Wall. 
(U.  S.)  523;  Bradley  v.  Fisher,  13  Wall.  (U.  S.)  335;  Ex  p.  Cole,  1 
MeCrary  (U.  S.)   405. 

sTownsend  v.  Jemison,  9  How.  (U.  S.)  407;  Barrett  v.  Holmes, 
102  U.  S.  651;  Michigan  Ins.  Co.  v.  Eldred,  130  U.  S.  693;  Davis  V. 
Mills,  194  U.  S.  451.  Consequently  they  are  governed  by  the  lex 
fori  and  are  within  the  control  of  the  legislature  of  the  State. 
Great  Western  Tel.  Co.  v.  Purdy,  162  U.  S.  329.  But  this  rule  13 
subject  to  certain  exceptions.     Davis  v.  Mills,  194  U.  S.  451. 

1  Terry  v.  Anderson,  95  U.   S.  62S;   Koshkonong  v.  Burton,  104 


172  DUE  PROCESS  OF  LAW 

Chapter    limitation  specified,   the  legislature  may  establish, 

'■ —  lengthen,   or  shorten  the  period  of  limitation  for 

existing  causes  of  action.^  '*It  is  difficult  to  see," 
said  Chief  Justice  Waite  in  a  leading  case,  ''why, 
if  the  legislature  may  prescribe  a  limitation  where 
none  existed  before,  it  may  not  change  one  which 
has  already  been  established.  The  parties  to  a  con- 
tract have  no  more  a  vested  interest  in  a  particular 
limitation  which  has  been  fixed,  than  they  have  in 
an  unrestricted  right  to  sue.  They  have  no  more  a 
vested  interest  in  the  time  for  the  commencement 
of  an  action  than  they  have  in  the  form  of  the  action 
to  be  commenced;  and  as  to  the  forms  of  action  or 
modes  of  remedy,  it  is  well  settled  that  the  legisla- 
ture may  change  them  at  its  discretion  provided  ade- 
quate means  of  enforcing  the  right  remain.  In  all 
such  cases  the  question  is  one  of  reasonableness,  and 
we  have,  therefore,  only  to  consider  whether  the 
time  allowed  in  this  statute  is,  under  all  the  circum- 
stances, reasonable.  Of  that  the  legislature  is  pri- 
marily the  judge;  and  we  can  not  overrule  the  de- 
cision of  that  department  of  the  government,  unless 
a  palpable  error  has  been  committed.  In  judging 
of  that,  we  must  place  ourselves  in  the  position  of 
the  legislators,  and  must  measure  the  time  of  limita- 
tion in  the  midst  of  the  circumstances  which  sur- 
rounded them,  as  nearly  as  possible;    for  what  is 


U.  S.  668;  Vance  r.  Vance,  108  U.  S.  514;  McGahey  v.  Virginia,  135 
U.  S.  662;  Wheeler  v.  Jackson,  137  U.  S.  245;  Campbell  v.  Haver- 
hill, 155  U.  S.  610;  Turner  v.  New  York,  168  U.  S.  90;  Wilson  v. 
Iseminger,  185  U.  S.  55;  Davis  V.  Mills,  194  U.  S.  451;  Schaiible  V. 
Schulz,   (C.  C.  A.)    137  Fed.  Rep.  389. 

2  Vance  v.  Vance,  32  La.  Ann.  186,  affirmed  108  U.  S.  514;  Wil- 
lard  V.  Harvey,  24  N.  H.  344. 


DUE  PROCESS  OF  LAW  173 


reasonable  in  a  particular  case  depends  upon  its    chapter 
particular  facts. ' '  ^  ^ — ■ 


The  question  whether  the  right  to  be  free  from  J,yo^r^"if3^*" 
an  action  becomes,  by  the  expiration  of  the  com-  fadied. 
pleted  statutory  period,  a  vested  right,  demands  an 
examination  of  the  operation  of  the  statute.  A  dis- 
tinction has  been  taken  as  to  the  effect  of  the  statute 
when  it  is  based  on  the  possession  of  real  or  per- 
sonal iDroperty,  and  when  it  marks  a  mere  prescrip- 
tive period  for  the  assertion  of  a  right  of  action.^ 
When  it  is  founded  on  possession  it  ripens  into  a 
title,  because,  though  the  statute  itself  may  be  a 
mere  bar,  yet  adverse  possession  for  the  prescribed 
period  under  the  statute  gives  a  title  as  complete 
and  perfect  as  a  grant.^  This  title  is  a  vested  right. 
But  when  a  statute  is  only  a  legislative  bar  to  a 
right  of  action,  as  for  debt,  the  case  is  different. 
The  debt  is  not  paid  by  the  lapse  of  time,  nor  in 
equity  is  there  any  vested  right  not  to  pay  the  debt, 
although  the  statute  has  run.^  This  distinction 
has  been  recognized  by  the  Su^^reme  Court  of  the 
United  States  as  applied  to  retrospective  laws.  In 
the  one  case,  the  right  is  vested  and  the  legislature 
may  not  interfere  with  it;  in  the  other  it  is  com- 
pletely within  legislative  control,  even  though  the 
statutory  period  may  have  barred  the  right  of  ac- 
tion.   In  Campbell  v.  Holt,''  in  holding  that  the  bar 

8  Terry  v.  Anderson,  95  U.  S.  628. 

*Townsend  r.  Jemison,  9  How.   (U.  S.)   407. 

5  Sharon  v.  Tucker,  144  U.  S.  533;  Toltec  Ranch  Co.  V.  Cook,  191 
U.  S.  532;  Davis  v.  Mills,  194  U.  S.  456;  Northern  Pac.  R.  Co.  v. 
Ely,  197  U.  S.   1. 

8  See  Dunn  r.  Beaman,  126  N.  Car.  766,  where,  however,  the 
validity  of  the  distinction  is  left  undetermined. 

7  115  U.  S.  620.     Bradley  and  Harlan,  JJ.,  dissented  vigorously. 


174  DUE  PROCESS  OF  LAW 

Chapter    of  the  statute  which  had  already  attached  as  to  a 

debt,  was  not  a  vested  right,  and  might  be  removed 

by  the  legislature,  Mr.  Justice  Miller,  for  the 
court,  said:  ''It  may,  therefore,  very  well  be  held 
that  in  an  action  to  recover  real  or  personal  prop- 
erty, where  the  question  is  as  to  the  removal  of  the 
bar  of  the  statute  of  limitations  by  a  legislative  act 
passed  after  the  bar  has  become  perfect,  such  act 
deprives  the  party  of  his  property  without  due  proc- 
ess of  law.  The  reason  is  that,  by  the  law  in  exist- 
ence before  the  repealing  act  the  property  had  be- 
come the  defendant's.  Both  the  legal  title  and  the 
real  ownership  had  become  vested  in  him.  .  .  . 
But  we  are  of  opinion  that  to  remove  the  bar  which 
the  statute  of  limitations  enables  a  debtor  to  inter- 
pose to  prevent  the  payment  of  his  debt  stands  on 
very  different  ground."  It  should  be  remarked, 
however,  that  in  many  jurisdictions  the  distinction 
is  not  observed  and  all  rights  perfected  by  the 
statute  of  limitations  are  regarded  as  vested.^ 


Does  the  A  remedy  as  such  is  no  part  of  the  contract  and 

statute  ''  ^ 


Remedies. 

1  is  no  par 

Remedy  p''^  may  bc  changed  at  the  will  of  the  legislature.  But 
when  the  effect  of  legislation  under  the  guise  of 
changing  remedies  is  to  take  away  the  party's  right 
to  enforce  his  contract,  or  materially  to  lessen  the 
effectiveness  of  his  available  remedies,  his  vested 
rights  are  interfered  with,  and  a  statute  having  such 

The  doctrine  of  the  majority  is  followed  in  a  number  of  States. 
See  McEldowney  v.  Wyatt,  44  W.  Va.  711;  19  Am.  and  Eng.  Encyc. 
of  Law   (2d  ed.)    171. 

8  See  19  Am.  and  Eng,  Encyc.  of  Law  (2d  ed.)    171. 


DUE  PROCESS  OF  LAW  175 

an   effect  is   void.    "Modes   of  procedure   in   the    chapter 

courts  of  a  State  are  so  far  within  its  control  that  a  '■ — 

particular  remedy  existing  at  the  time  of  the  making 
of  a  contract  may  be  abrogated  altogether,  without 
impairing  the  obligation  of  the  contract,  if  another 
and  equally  adequate  remedy  for  the  enforcement  of 
that  obligation  remains,  or  is  substituted  for  the  one 
taken  away.^  Much  more  may  the  State  give  an 
additional  and  more  efficacious  remedy  for  the  en- 
forcement of  contracts  in  the  performance  of  which 
the  public  health  and  the  iDublic  safety  are  involved, 
jDrovided,  always,  that  the  new  remedy  is  consist- 
ent with  the  nature  of  the  obligation  to  be  enforced, 
and  does  not  impair  any  substantial  right  given  by 
the  contract."^  Under  this  head  were  held  to  fall 
provisions  in  a  revised  city  charter  authorizing  ad- 
ditional means  of  securing  the  payment  of  water 
rents  by  providing  a  penalty  to  be  imposed  by  the 
board  of  public  works  in  case  of  non-payment  and  a 
heavy  rate  of  interest  on  rents  continuing  in  arrear. 
'*We  look  upon  these  provisions,"  said  the  court, 
*'as  merely  intended  to  enforce  prompt  payment, 


9  Citing  Bronson  v.  Kinzie,  1  How.  (U.  S.)  311,  315;  Von  Hoff- 
man r.  Quincy,  4  Wall.  (U.  S.)  552;  Connecticut  Mut.  L.  Ins.  Co.  v. 
Cushman,  108  U.  S.  64,  2  U.  S.  Sup.  Ct.  Rep.  236;  McGahey  v.  Vir- 
ginia, 135  U.  S.  693,  10  U.  S.  Sup.  Ct.  Rep.  972. 

1  New  Orleans  City,  etc.,  R.  Co.  v.  Louisiana,  157  U.  S.  219. 

Thus  the  writs  of  attachment  or  mandamus  may  be  taken  away, 
if  a  legal  remedy  still  remains.  Tennessee  v.  Sneed,  96  U.  S.  69; 
Antoni  v.  Greenhow,  107  U.  S.  769. 

Where  a  mortgage  is  subject  to  an  existing  mechanics'  lien,  a 
statute  which  merely  alters  and  enlarges  the  means  of  enforcing  the 
lien  cannot  be  said  to  impair  the  mortgagee's  contract,  which,  being 
subject  to  the  lien,  was  subject  to  such  changes  as  the  legislature 
might  make  in  the  remedy  to  foreclose  it.  Red  River  Valley  Nat. 
Bank  v.  Craig,   181  U.  S.  548. 


176 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Instances 
held  pro- 
hibited. 


Capias;  ex- 
emptions. 


and  as  incidental  regulations,  appropriate  to  the 
subject."  ^ 

So  far  as  they  affect  debts  contracted  before  the 
j)assage  of  the  statutes,  State  insolvency  laws,^  laws 
extending  the  jDeriod  of  redemption  from  execution 
sales,^  laws  limiting  the  right  to  sell  under  execu- 
tion unless  the  property  brings  a  certain  proportion 
of  its  value,^  laws  allowing  the  jury,  in  a  suit  for 
breach  of  contract,  to  disregard  the  express  stipu- 
lations of  the  contract,^  are  among  instances  of  laws 
nominally  effecting  remedies  which  have  been  held 
to  affect  fundamental  rights  and  therefore  to  be  un- 
constitutional. Stay  laws,  which  suspend  for  a  time 
the  right  to  issue  execution  and  final  jDrocess  on 
judgments  recovered,  have  been  held  to  belong  to 
the  same  classJ 

Under  this  head  fall  laws  taking  away  the  right 
to  issue  execution  against  the  body  of  the  debtor,^ 
or  creating  in  favor  of  the  debtor  exemptions  from 
execution  against  property  or  modifying  such  rights 
of  exemption,  provided  the  rights  and  interests  of 
the  creditor  are  not  materially  impaired.  In  Bron- 
son  V.  Kinzie,^  it  was  said:  ''It  [the  State]  may,  if 
it  thinks  proper,  direct  that  the  necessary  imple- 
ments of  agriculture,  or  the  tools  of  the  mechanic, 
or  articles  of  necessitv  in  household  furniture,  shall, 


2  Provident  Sav.  Inst.  v.  Jersey  City,  113  U.  S.  506. 
sOgden  v.  Saunders,  12  Wheat.    (U.  S.)   213. 
4Barnitz  v.  Beverly,  163  U.  S.  118. 
BMcCracken  v.  Hayward,  2  How.    (U.  S.)    608. 
eEffinger  v.  Kenney,  115  U.  S.  566. 
7  Edwards  V.  Kearzey,  96  U.  S.  505. 

sSturges  v.  Crowninshield,  4  Wheat.    (U.  S.)    122;   Edwards  v. 
Kearzey,  96  U.  S.  595. 
0  1  How.   (U.  S.)  311. 


DUE  PROCESS  OP  LAW  X77 

like  wearing  apparel,  not  be  liable  to  execution  on    Chapter 

judgments.     Regulations   of  this   description  have  

always  been  considered,  in  every  civilized  commu- 
nity, as  properly  belonging  to  the  remedy,  to  be 
exercised  or  not  by  every  sovereignty,  according  to 
its  own  views  of  policy  and  humanity.  It  must  re- 
side in  every  State  to  enable  it  to  secure  its  citizens 
from  unjust  and  harassing  litigation,  and  to  pro- 
tect them  in  those  pursuits  which  are  necessary  to 
the  existence  and  well-being  of  every  community. 
And  although  a  new  remedy  may  be  deemed  less 
convenient  than  the  old  one,  and  may  in  some 
degree  render  the  recovery  of  debts  more  tardy 
and  difficult,  yet  it  will  not  follow  that  the  law  is 
unconstitutional.  Whatever  belongs  merely  to  the 
remedy  may  be  altered  according  to  the  will  of  the 
State,  provided  the  alteration  does  not  impair  the 
obligation  of  the  contract."  In  Edwards  v.  Kear- 
zey^  this  passage  was  quoted  and  the  last  sentence 
was  said  to  show  that  the  court  had  in  mind  only 
small  and  unimportant  changes  and  the  maxim  de 
minimis  non  curat  lex.  It  was  held  that  the  means 
of  enforcement  of  a  contract  is  ''the  breath  of  its 
vital  existence,"  and  inseparable  from  the  right. 
Accordingly  a  retrospective  law  materially  increas- 
ing the  homestead  exemption  was  held  unconstitu- 
tional and  void.2 

Laws  reducing  the  debtor's  right  of  homestead  J^^^|*" 
have  been  held  constitutional  in  State  courts ;  ^  but,  ii°°i^stead. 
if  the  reduction  is  material,  it  is  hard  to  see  how 

1  96  U.  S.  595. 

2  To  the  same  effect  is  Gunn  v.  Barry,  15  Wall.  (U.  S.)  622. 

3  See,  for  instance,  Harris  v.  Glenn,  56  Ga.  94 ;  Leak  v.  Gay,  107 
N.  Car.  468. 

12 


178  DUE  PROCESS  OF  LAW 

Chapter    gycJi  ^  holding  can  be  reconciled  with  the  doctrine 

of  the  United  States  Supreme  Court.    If  existing 

laws  as  to  the  enforcement  of  a  contract  become  a 
part  of  its  obligation  for  the  creditor,  surely  the 
debtor  may  claim  the  same  right.'*  The  reasoning 
upon  which  these  cases  are  supported  is  that  the 
obligation  of  the  debtor  on  a  contract  is  merely  to 
pay  the  debt,  and  he  can  have  no  vested  right  in  an 
exemption  granted  ex  gratia  by  the  legislature.^ 

Laws  Annexing  Conditions  or  Penalties  to  Rights 
of  Action  or  Prosecution. 

?ecurity"^  -^  statutc  whlch  recognizes  a  right  of  action  as 

act^k)n.  existing  but  regulates  its  assertion  by  requiring 
the  plaintiff  to  give  security  before  being  allowed 
to  prosecute  it  is  not  a  deprivation  of  due  process 
of  law.  Thus  when  the  granting  of  an  injunction 
to  stay  the  collection  of  taxes  was  made  dependent 
upon  the  applicant  giving  security,  the  court  said: 
"It  can  hardly  be  necessary  to  answer  an  argument 
which  excludes  from  the  definition  of  due  process 
of  law  all  that  numerous  class  of  remedies  in  which, 
by  the  rules  of  court  or  by  legislative  provisions,  a 
party  invoking  the  powers  of  a  court  of  justice  is 
required  to  give  that  security  which  is  necessary  to 
prevent  its  process  from  being  used  to  work  gross 
injustice. ' '  ^ 

*  See  Galligher  v.  Smiley,  28  Neb.  189. 

oDavies  Henderson  Lumber  Co.  v.  Gottschalk,  81  Cal.  641.  And 
cases  cited  supra,  this  paragraph. 

The  principle  that  a  remedy  may  be  made  more  effective  seems 
to  beg  the  qiiestion,  which  is  whether  we  are  dealing  with  a  remedy 
or  a  substantive  right. 

6  McMillan  v.  Anderson,  95  U.  S.  42. 


DUE  PROCESS  OF  LAW  179 


A  statute  which  annexes  to  the  right  to  prose-    Chapter 


cute  a  criminal  action  the  penalty  of  costs  and  the 
liability  to  imprisonment  until  payment,  if  the  prose-  costs  when 
cution  shall  appear  to  the  court  or  jury  to  have  been  ^^^^g™^"" 
malicious  and  without  probable  cause,  does  not  deny 
due  process  of  law,  at  least  when  there  is  given  to 
the  prosecutor  upon  the  trial  the  right  to  be  heard 
upon  the  questions  of  malice  and  probable  causeJ 
The  court  reasoned  that  the  creation  of  an  absolute 
liability  to  costs  upon  the  failure  of  the  prosecution 
would  be  indisputably  valid.  The  condition  an- 
nexed to  the  liability  threw  the  burden  on  the  de- 
fendant of  establishing  malice  and  want  of  probable 
cause  on  the  part  of  the  prosecutor.  But  the  prose- 
cutor, "being  the  actor,  had  no  right  to  complain  of 
being  obliged,  if  unsuccessful,  to  pay  the  costs  upon 
the  conditions  previously  prescribed  by  the  legisla- 
ture. Whether  the  question  of  probable  cause  for 
the  prosecution,  as  affecting  the  question  of  costs, 
should  be  tried  and  determined  by  the  court  or  the 
jury,  and  with  or  after  the  main  question  of  the  guilt 
of  the  defendant,  is  matter  of  convenient  practice, 
not  of  constitutional  right."  There  was  nothing  in 
the  statute,  or  in  the  record,  to  show  that  the  prose- 
cutor had  been  denied  the  right  to  introduce  evidence 
bearing  on  his  good  faith,  or  the  right  to  a  hearing 
on  that  question,  and,  therefore,  a  judgment  for  costs 
was  due  process  of  law.^ 

7  Lowe  V.  Kansas,  163  U.  S.  8L 

8 Mr.  Justice  Brown  dissented,  saying:  "It  is  a  fatal  objection 
to  the  statute  that  it  imdertakes  to  settle  in  one  trial  the  rights  ot 
two  parties  to  a  criminal  cause  whose  interests  are  adverse,  and  to 
try  two  distinct  and  disconnected  issues,  viz.,  the  guilt  of  the  prin- 
cipal  defendant  and   the   innocence  of  the  prosecutor,  upon  testi- 


180 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Legislative 
power  over 
rules  of 
evidence. 


Creating 

prima  facie 
presump- 
tions. 


Evidence  and  the  Creation  of  Presumptions. 

It  is  within  the  acknowledged  power  of  every 
legislature  to  prescribe  the  evidence  which  shall  be 
received  in  the  courts  of  the  State  and  to  determine 
the  effect  of  that  evidence.^  Statutes  regulating 
evidence  may  even  be  given  a  retrospective  effect, 
since  rules  of  evidence  do  not  form  part  of  the  con- 
tracts entered  into  while  they  are  in  force,  and  since 
there  can  be  no  vested  right  in  a  mere  rule  of  evi- 
dence/ 

cA  State  may  prescribe  the  evidence  which  makes 
a  prima  facie  case,  or  determine  upon  whom  rests 
the  burden  of  proof.f^l  Statutes  prescribing  the  in- 
ferences to  be  drawn  prima  facie  from  deeds  or 
from  their  registration,^  or,  in  a  criminal  prose- 
cution, from  the  possession  by  the  defendant  of 
certain  articles,  implements,  or  papers,^  are  unob- 
jectionable  from   a   constitutional   point    of   view; 


mony  applicable  to  but  one  of  such  issues."  In  the  view  of  the 
court,  however,  testimony  on  both  issues  must  have  been  received. 
Lowe  V.  Kansas,  163  U.  S.  81. 

s  Fong  Yue  Ting  V.  U.  S.,  149  U.  S.  729 ;  Holmes  v.  Hunt,  122 
Mass.  505. 

iMarx  V.  Hanthorn,  148  U.  S.  172.  citing  Kendall  V.  Kingston, 
5  Mass.  524;  Com.  r.  Williams,  6  Gray  (Mass.)  1;  Goshen  v.  Rich- 
mond, 4  Allen  (Mass.)  458;  Rich  v.  Flanders,  39  N.  H.  304;  Cooley, 
Const.  Lim.   (ed.  1878)  457. 

2Mugler  V.  Kansas,  123  U.  S.  623,  G74;  Adams  v.  New  York,  192 
U.  S.  585. 

3  Pillow  V.  Roberts,  13  How.  (U.  S.)  472;  Webb  v.  Den,  17  How. 
(U.  S.)  576;  Callanan  v.  Hurley,  93  U.  S.  387;  Gage  v.  Kaufman, 
133  U.  S.  471;  Marx  V.  Hanthorn,  148  U.  S.  172;  Turpin  v.  Lemon, 
187  U.  S.  59.  These  are  cases  of  tax  deeds,  made  by  statute  prima 
facie  evidence  of  th«  regularity  of  the  tax  title  or  the  like. 

4  Adams  v.  New  York,  192  U.  S.  585. 


DUE  PROCESS  OF  LAW  181 


provided, (it  lias  been  held,  that  the  facts  upon  which    Chapter 


the  statute  raises  the  presumption  have  some  fair 
relation  to,  or  natural  connection  with,  the  fact  pre- 
sumed; that  the  inference  authorized  is  not  wholly 
arbitrary,  unreasonable  or  unnatural;  and  that  the 
person  against  whom  the  presumption  is  drawn  has 
in  every  case  a  fair  opportunity  to  make  his  defense, 
and,  in  cruninal  cases  in  jurisdictions  where  trial  by 
jury  is  guaranteed,  to  submit  the  whole  question  of 
guilt  or  innocence  to  the  decision  of  the  jury,  after 
it  has  weighed  all  the  evidence  and  given  such  weight 
to  the  presumption  as  it  shall  deem  projDeTj^/ 

The  right  of  a  legislature  to  make  the  inference  Conclusive 
from  particular  states  of  facts  conclusive  and  irre-  ^^r^y^.^""' 

5  Excise  Com'rs  v.  Merchant,  103  N.  Y.  143,  57  Am.  Rep.  705; 
People  V.  Cannon,  139  N.  Y.  32. 

Such  presumptions  are  frequently  created  by  the  legislature  in 
the  exercise  of  the  police  power,  with  reference  to  oflFences  against 
liquor  laws.  Mugler  v.  Kansas,  123  U.  S.  623,  674;  State  V.  Thomas, 
47  Conn.  546,  36  Am.  Rep.  98;  Com.  v.  Williams,  6  Gray  (Mass.)  1; 
Excise  Com'rs  V.  Merchant,  103  N.  Y.  143,  57  Am.  Rep.  705;  State 
r.  Higgins,  13  R.  I.  330  (compare  State  v.  Beswick,  13  R.  I.  211, 
43  Am.  Rep.  26;  State  V.  Kartz,  13  R.  I.  528,  wherein  a  rebuttabla 
inference  from  the  general  reputation  of  a  place  as  selling  liquor 
illegally  was  held  to  deny  due  process  and  exceed  the  powers  of  the 
legislature).  The  game  laws:  Ex  p.  Maier,  103  Cal.  47,  42  Am. 
St.  Rep.  129;  Dickhaut  v.  State,  85  Md.  451,  60  Am.  St.  Rep.  332; 
and  see  generally  Geer  v.  Connecticut,  161  U.  S.  519.  Laws  to 
suppress  gambling:  Adams  v.  New  York,  192  U.  S.  585,  affirming 
176  N.  Y.  351;  Voght  v.  State,  124  Ind,  358. 

Such  statutes,  within  the  limitation  stated,  do  not  change  the 
burden  of  proof,  in  the  sense  that  a  particular  quantum  of  evidence 
shall  be  necessary  for  conviction,  but  only  regulate  a  formal  mat- 
ter of  procedure,  the  duty  of  going  forward  with  the  evidence.  Com. 
V.  Williams,  6  Gray  (Mass.)  4;  People  v.  Cannon,  139  N.  Y.  43,  44. 
36  Am.  St.  Rep.  668.  Nor  do  they  take  away  the  presumption  of 
innocence.  See  Thayer,  Prelim.  Treatise  on  Evid.  380,  384;  Davis  V. 
U.  S.,  160  U.  S.  485. 


182  DUE  PROCESS  OF  LAW 

Chapter    buttable,  has  been  vigorously  challenged.*^     The  con- 

■ stitutionality  of  such  statutes  depends,  however,  not 

on  the  creation  of  a  conclusive  presumption,  but 
upon  the  character  of  the  matter  concluded.  Upon 
an  issue  on  which  a  person  is  entitled  to  a  hearing, 
an  issue  the  determination  of  which  involves  a  judi- 
cial or  quasi-judicial  inquiry,  the  legislature  has  evi- 
dently no  power  to  enact  arbitrarily  that  certain 
evidence  shall  be  conclusive,  any  more  than  it  can 
enact  that  a  court  may  determine  a  question  without 
giving  the  parties  an  opportunity  to  be  heard.'^ 
The  legislature  can  not,  therefore,  deprive  one  of 
his  property  by  making  conclusive  of  its  own  valid- 
ity his  adversary's  claim  to  title  irrespective  of  what 
that  claim  may  be;  and  so  it  can  not  make  a  tax 
deed  conclusive  evidence  of  the  vendee's  title,^  un- 
less before  it  is  made  conclusive  a  reasonable  time 
is  allowed  for  the  assertion  of  adverse  rights.^  But 
it  may  make  such  a  deed  conclusive  of  compliance 
with  all  the  requirements  of  law  which  are  merely 
directory  and  might  have  been  dispensed  with  by 
the  legislature  in  the  first  place  without  affecting 
the  validity  of  the  proceedings.^    The  legislature,  in 

•Wantlan  v.  White,  19  Tnd.  470;  Voght  v.  State,  124  Ind.  358; 
Missouri,  etc.,  R.  Co.  v.  Simonson,  64  Kan.  802. 

7  Chicago,  etc.,  R.  Co.  V.  Minnesota,  134  U.  S.  418;  Felix  V.  Wal- 
lace County,  62  Kan.  832;  Howard  V.  Moot,  64  N.  Y.  268. 

8  Marx  V.  Hanthorn,  148  U.  S.  182 ;  Turpin  v.  Lemon,  187  U.  S. 
59. 

0  Such  an  act  is  in  effect  a  statute  of  limitations.  Turner  t'. 
New  York,  168  U.  S.  90  {affirming  145  N,  Y.  451,  and  approving  Peo- 
ple V.  Turner,  117  N.  Y.  227)  ;  Saranac  Land,  etc.,  Co.  v.  Comp- 
troller, 177  U.  S.  318.     See  supra,  p.  171. 

1  Allen  V.  Armstrong,  16  Iowa  513;  Larson  V.  Dickey.  39  Neb.  463, 
42  Am.  St.  Rep.  595;  Strode  v.  Washer,  17  Oregon  53.  See  also 
Marx  V.  Hanthorn,  148  U.  S.  172,  30  Fed.  Rep.  585. 


DUE  PROCESS  OF  LAW  183 

a  word,  cannot  by  its  fiats  create  presumptions  which    chapter 

are  conclusive  of  matters  upon  which  the  existence  '■ — • 

of  jurisdiction  depends,  and  among  these  is  the  right 
to  a  hearing  before  condemnation. 

But  it  has  been  said  that  the  prohibition  does  not  Conclusive 

^  presump- 

extend  to  the  adoption  as  conclusive  of  evidence  Sl^^'"^ 
which,  according  to  the  ordinary  rules  of  human  ex- 
perience, reasonably  tends  to  prove  a  fact."^  The 
rule  thus  announced  has  been  adopted  by  the  Su- 
preme Court  of  the  United  States  in  a  case  involv- 
ing the  right  of  a  State  legislature  to  enact  that  con- 
viction of  felony  shall  be  an  absolute  disqualification 
to  practice  medicine.  The  court  sustained  the  stat- 
ute upon  the  theory  that  even  as  applied  to  a  physi- 
cian who  had  been  convicted  before  its  passage,  it 
was  not  a  punishment  for  crime,  but  established  a 
rule  of  evidence  as  to  character.  It  said:  ^'If  a 
State  may  require  good  character  as  a  condition  of 
the  practice  of  medicine,  it  may  rightfully  determine 
what  shall  be  the  evidences  of  that  character.  We 
do  not  mean  to  say  that  it  has  an  arbitrary  power 
in  the  matter,  or  that  it  can  make  a  conclusive  test 
of  that  which  has  no  relation  to  character,  but  it 
may  take  whatever,  according  to  the  experience  of 
mankind,  reasonably  tends  to  prove  the  fact  and 
make  it  a  test.^  Whatever  is  ordinarily  connected 
with  bad  character,  or  indicative  of  it,  may  be  pre- 
scribed by  the  legislature  as  conclusive  evidence 
thereof.  It  is  not  the  province  of  the  courts  to  say 
that  other  tests  would  be  more  satisfactory,  or  that 

»  County  Seat  of  Linn  County,  15  Kan.  528,  per  Brewer,  J.,  since 
of  the  U.  S.  Supreme  Court. 

*  Citing  County  Seat  of  Linn  County,  15  Kan.  500,  528. 


184 


DUE  PROCESS  OF  LAW 


Conclusive 
presump- 
tions in 
matters  of 
contract. 


Chapter    the  naming  of  other  qualifications  would  be  more 

'- —  conducive  to  the  desired  result.     These  are  questions 

for  the  legislature  to  determine. ' '  ^ 

The  legislature  may,  it  appears,  create  conclu- 
sive presumptions  upon  the  principles  of  estoppel 
from  the  signing  of  a  contract;  and  it  may,  in  the 
exercise  of  a  power  analogous  to  that  exerted  in  the 
passage  of  curative  or  validating  acts,  provide  that 
a  deed  shall  be  conclusive  as  to  all  non-essential 
matters.  Thus  on  the  principle  of  estoppel,  a  law 
providing  that  a  fire-insurance  policy  should  be  con- 
clusive of  the  value  of  the  property  when  the  policy 
was  issued,  was  held  to  be  constitutional.  Its  effect 
was  said  to  be  merely  to  change  open  policies  to 
valued  ones.  ''It  makes,"  said  the  court,  "no  con- 
tract for  the  parties.  In  this  it  permits  absolute 
freedom.  It  leaves  them  to  fix  the  valuation  of  the 
property  upon  such  prudence  and  inquiry  as  they 
choose.  It  only  ascribes  estoppel  after  this  is  done 
—  estoppel,  it  must  be  observed,  to  the  acts  of  the 
parties,  and  only  to  their  acts  in  open  and  honest 
dealing.  Its  presumptions  can  not  be  urged  against 
fraud."  The  court  further  observed  that  the  cases 
holding  that  the  legislature  can  not  create  conclusive 
presumptions  do  not  apply.  Those  cases  ''were  not 
of  contract  nor  gave  effect  to  contracts.  It  is  one 
thing  to  attribute  effect  to  the  convention  of  par- 
ties entered  into  under  the  admonition  of  the  law, 
and  another  thing  to  give  to  circumstances,  maybe 
accidental,  conclusive  presumption  and  proof  to  es- 
tablish and  force  a  result  against  property  or  lib- 


B  Hawker  V.  New  York,  170  U.  S.  189,  195,  opinion  of  the  court 
by  Brewer,  J. 


DUE  PROCESS  OF  LAW  185 

erty."^    Decisions  in  State  courts  holdins-  uncon-    chapter 

.       .                        .                                                                             IV. 
stitutional  as  against  a  party  to  a  contract  an  estop-  

pel  which  the  legislature  makes  conclusive  from  its 

execution,  for  instance,  a  statute  making  bills  of 

lading  issued  by  railroad  companies  conclusive  as 

to  the  amount  of  grain,  etc.,  shipped,"   appear  upon 

the  principle  just  stated  to  be  unwarranted. 

Statutes  have  in  some   State  courts  been  con-  ^bs°iute 

liability 

strued  as  creating  only  a  prima  facie  presumption  rafSs?^ 
on  the  ground  that  to  hold  the  presumption  created 
as  absolute  would  render  the  statutes  contrary  to 
reason  and  void  as  depriving  a  person  of  property 
without  a  hearing.  An  instance  is  a  statute  in  one 
interpretation  rendering  railroads  absolutely  liable 
for  ''damages  to  persons  and  property  done  or 
caused  by  the  running  of  trains. ' '  ^  But  the  ground 
of  such  a  ruling  in  this  case  would  appear  indefensi- 
ble, and  the  validity  of  such  statutes  has  been  up- 
held as  a  proper  exercise  of  the  police  power  of  the 
State  in  the  regulation  of  the  use  of  appliances 
peculiarly  dangerous.  In  a  case  holding  valid  the 
Missouri    statute   declaring   railroads   liable    abso- 

« Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557.  The  holding  in  this 
case  has  been  followed  in  New  York  L.  Ins.  Co.  v.  Cravens,  178  U. 
S.  399;  John  Hancock  Mut.  L.  Ins.  Co.  v.  Warren,  181  U.  S.  76;  Fi- 
delity Mut.  L.  Assoc.  V.  Mettler,  185  U.  S.  326.  But  it  will  be 
noted  that  all  these  cases  concerned  foreign  corporations  doing  busi- 
ness in  a  State,  and  the  decisions  were  put  on  the  ground  also  of 
the  State's  right  to  control  such  corporations. 

T  Missouri,  etc.,  R.  Co.  v.  Simonson,  64  Kan.  802.  91  Am.  St. 
Rep.  248,  Doster,  C.  J.,  dissenting.  It  has  been  held  beyond  the 
power  of  Congress  to  make  the  oath  of  an  infant  on  his  enlistment 
in  the  United  States  army  that  he  is  of  age  conclusive  of  the  fact. 
Wantlan  v.  White,  19  Ind.  470.  Compare  Matter  of  Cline,  1  Ben. 
(U.  S.)  338. 

8  Little  Rock,  etc.,  R.  Co.  v.  Payne,  33  Ark.  816,  34  Am.  Rep. 
55;  and  see  Zeigler  v.  South,  etc.,  Alabama  R.  Co.,  58  Ala.  594. 


186 


DUE  PROCESS  OF  LAW 


Chapter 
IV. 


Other 

absolute 
liabilities 
under  po- 
lice power. 


lutely  for  fires  produced  by  their  engines,  the  United 
States  Supreme  Court  said :  ' '  The  right  of  the  citi- 
zen not  to  have  his  property  burned  without  com- 
pensation is  no  less  to  be  regarded  than  the  right  of 
the  corporation  to  set  it  on  fire.  To  require  the 
utmost  care  and  diligence  of  the  railroad  corpora- 
tions in  taking  precautions  against  the  escape  of 
fire  from  their  engines  might  not  afford  sufficient 
protection  to  the  owners  of  property  in  the  neigh- 
borhood of  railroads.  When  both  parties  are 
equally  faultless,  the  legislature  may  properly  con- 
sider it  to  be  just  that  the  duty  of  insuring  private 
property  against  loss  or  injury  caused  by  the  use  of 
dangerous  instruments  should  rest  upon  the  rail- 
road company,  which  employs  the  instruments  and 
creates  the  peril  for  its  own  profit,  rather  than  upon 
the  owner  of  the  property,  who  has  no  control  over 
or  interest  in  those  instruments."^ 

The  exercise  of  the  police  power  in  its  widest 
sense,  the  power  of  the  State  to  regulate  the  eco- 
nomic relations  of  its  citizens  and  persons  within 
its  jurisdiction,  has  been  held  to  justify  the  creation 
of  presumptions  as  to  various  matters  based  on  doc- 
trines of  natural  equity  and  common  advantage.  A 
statute  of  Utah  enacted  that  persons  driving  stock 
along  highways  should  be  responsible  for  damage 
done  by  the  animals  in  destroying  the  banks  of,  or 
rolling  rocks  into,  the  highway.  The  objection  that 
the  statute  denied  due  process  of  law,  the  Supreme 
Court  held  to  be  untenable.  The  act  was  declared  to 
be  a  valid  exercise  of  police  power.  ''In  effect,"  said 
the  court,  after  referring  to  the  case  last  mentioned, 

9  St.  Louis,  etc.,  R.  Co.  v.  Matthews,  165  U.  S.  L 


DUE  PROCESS  OF  LAW  187 


"the  legislature  declared  that  the  passage  of  droves    Chapter 

or  herds  of  animals  over  a  hillside  highway  was  so  '— 

likely,  if  great  precautions  were  not  observed,  to 
result    in    damage    to    the    road,    that   where    this 
damage  followed  such  driving,  there  ought  to  be  no 
controversy  over  the  existence  or  non-existence  of 
negligence,  but  that  there  should  be  an  absolute  legal 
presumption  to  that  effect  resulting  from  the  fact 
of  having  driven  the  herd.     ...     It  was  obviously 
the  province  of  the  State  legislature  to  provide  the 
nature  and  extent  of  the  legal  presumption  to  be 
deduced  from  a  given  state  of  facts,  and  the  creation 
by  law  of  such  presumptions  is,  after  all,  but  an  illus- 
tration of  the  power  to  classify.    When  the  statute 
is  properly  understood,  therefore,  the  argument  of 
the  plaintiff  in  error  amounts  to  an  assertion  that 
the  whole  subject  of  the  probative  force  to  arise  by 
operation  of  law,  from  any  specified  state  of  facts, 
is,  in  every  sense,  by  the  ei^ect  of  the  Fourteenth 
Amendment,  removed  from  the  jurisdiction  of  the 
local  authorities.    ...    As  the  statute  clearly  speci- 
fies the  condition  under  which  the  presumption  of 
negligence  arises  and  provides  for  the  ascertainment 
of  liability  by  judicial  proceedings,  there  is  no  foun- 
dation for  the  assertion  that  the  enforcement  of 
such  ascertained  liability  constitutes   a   taking  of 
property  without  due  process  of  law."  ^ 

Evidence  is  not  rendered  inadmissible  because  useof 

evidence 

it  was  obtained  in  an  unfair  or  illegal  manner;   it  oitlfned. 
may  be  still  pertinent  to  the  issue,  although  he  who 
obtained  it  may  be  liable  to  civil  suit  or  even  to 

1  Jones  V.  Brim,  165  U.  S.  180. 


188  -DUE  PROCESS  OP  LAW 

Chapter    criminal  prosecution.^     This  principle  must  be  care- 

'■ —  fully  distinguished  from  the  ruling  that  evidence  is 

inadmissible,  the  use  of  which  compels  the  defend- 
ant in  a  criminal  case,  contrary  to  a  constitutional 
guaranty,  to  give  evidence  against  himself;  or 
which,  in  violation  of  the  constitutional  provision 
against  unreasonable  searches  and  seizures,  was  ob- 
tained in  a  search  the  object  of  which  was  to  seize 
private  papers  of  the  defendant  of  such  a  character 
that  their  use  would  make  him  a  witness  against 
himself.^  The  use  of  evidence  obtained  under  du- 
ress upon  an  examination  of  the  defendant  in  a 
criminal  case  by  a  physician  acting  pursuant  to  a 
direction  from  the  prosecuting  attorney,  has  been 
held  a  violation  of  the  defendant's  right  under  the 
State  constitution  to  be  free  from  unreasonable 
searches  and  seizures,  and  also  to  be  an  infringe- 
ment of  the  guaranty  of  due  process  of  law.^ 

2  Adams  v.  New  York,  192  U.  S.  585,  affirming  176  N.  Y.  351; 
Com.  V.  Dana,  2  Met.   (Mass.)   329;  Com.  v.  Tibbetts,  157  Mass.  519. 

8  Boyd  V.  U.  S.,  116  U.  S.  616. 

This  case  has  been  frequently  distinguished.  See  Adams  v.  New 
York,  192  U.  S.  585;  State  v.  Griswold,  67  Conn.  290;  Gindrah  v. 
People,  138  111.  103;  State  v.  O'Connor,  3  Kan.  App.  594. 

*  State  V.  Height,  117  Iowa  650. 


CHAPTER  V. 

THE  PERSONS  PROTECTED  BY  DUE  PROCESS. 


B 


OTH  the  Fifth  and  Fourteenth  Amendments  to    Ch^ter 
the  United  States  Constitution  use  in  connec-  


tion  with  the  guaranty  of  due  process  of  law 
the  word  ''person,"  which  includes  every  one  within 
the  territory  of  the  United  States,  without  regard  to 
differences  of  race,  color,  or  nationality.^ 

CORPORATION'S. 

"Within  the  class  of  persons  thus  j^rotected  are 
corporations,^  including  foreign  corporations  doing 
business  within  the  State,  when  and  only  when  such 
corporations  have  complied  with  the  reasonable  and 
lawful  conditions  imposed  upon  them  by  the  laws 
of  the  State  ^  and  in  accordance  with  the  terms  of 
those  conditions,  which  must  give  a  right  to  hear- 
ing before  condemnation.^  But  due  process  of  law 
does  not  demand  that  an  absolute  equality  between 

1  Yick  Wo  V.  Hopkins,  118  U.  S.  3G9  (Fourteenth  Amendment)  ; 
Wong  Wing  v.  U.  S.,  163  U.  S.  236,  237   (Fifth  Amendment). 

2  Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  118  U.  S.  394; 
Covington,  etc.,  Ttirnpike  Road  Co.  v.  Sandford,  164  U.  S.  578,  592; 
Smyth  V.  Ames,  169  U.  S.  522;  Lake  Shore,  etc.,  R.  Co.  v.  Smith, 
173  U.  S.  684,  690. 

Corporation  charters  arre  contracts  within  the  clause  forbidding 
the  impairment  of  contracts.     See  supra,  p.  151. 

3  Philadelphia  F.  Assoc,  v.  New  Ymk,  119  U.  S.  110;  Pembina 
Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  125  U.  S.  181. 

4  St.  Clair  v.  Cox,  106  U.  S.  356 ;  Barrow  Steamship  Co.  V.  Kane, 
170  U   S.  100.     See  supra,  p.  102. 

189 


190  DUE  PPvOCESS  OF  LAW 

Chapter    foreign    corporations    and    domestic    corporations 
shall  be  established.     The  State  may,  in  certain  di- 
rections, discriminate  against  foreign  corporations, 
since  corporations  are  not  citizens  within  the  privi- 
lege and  immunity  clauses  of  the  Constitution.^ 

ALIENS IMMIGEATION   LAWS. 

Aliens  are  entitled  to  due  process  of  law,  but  the 
position  of  resident  and  nonresident  aliens  is  dif- 
ferent.*' 
Tamfnis"^  Every  sovereign  state  has,   as   inherent  in  its 

officials  to     sovereignty,  the  right  to  forbid  the  entrance  of  for- 

exclude  • 

aliens.  eiguers  within  its  dominions,  or  to  admit  them  only 
in  such  cases  and  upon  such  conditions  as  it  may 
see  fit  to  prescribe."^  The  exercise  of  this  power 
belongs  to  the  political  department  of  the  govern- 
ment. Congress  may,  therefore,  make  laws  provid- 
ing for  the  exclusion  of  aliens,  prescribing  the  terms 
and  conditions  on  which  they  may  be  admitted,  and 
establishing  regulations  for  the  deportation  of  aliens 
who  have  entered  in  violation  of  law,  and  may  com- 
mit the  enforcement  of  such  laws  to  executive  offi- 
cers.® Further,  although  Congress  may,  if  it  sees 
fit,  authorize  the  courts  to  investigate  and  ascer- 
tain the  facts  upon  which  the  alien's  right  to  land 
was  made  by  the  statutes  to  depend,  yet  it  may 
intrust  the  final  determination  of  those  facts  to  an 

5  Blake  v.  McClung,  172  U.  S.  259,  260;  Sully  v.  American  Nat. 
Bank,  178  U.  S.  289.     See  Wise,  Citizenship,  167  et  seq. 

6  U.  S.  V.  W^illiams,  194  U.  S.  279 ;  U.  S.  v.  Ju  Toy,  198  U.  S.  263. 
TChae  Chan  Ping  v.  U.  S.    (Chinese  Exclusion  Case),  130  U.  S. 

581;  Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  659;  U.  S.  v.  Ju  Toy,  198 
U.  S.  253. 

8  Japanese  Immigrant  Case,   189  U.   S.  86;    U.  S.  v.  Williams, 
194  U.  S.  279. 


DUE  PROCESS  OF  LAW  191 

executive  or  administrative  officer,  and,  if  it  does    chapter 

so,  his  order  is  due  process  of  law,  and  no  other  '■ — 

tribunal,  unless  expressly  authorized  by  law,  is  at 
liberty  to  examine  the  evidence  on  which  he  acted 
or  to  controvert  its  sufficiency.^  It  seems  to  follow 
that  the  order  of  an  administrative  officer  exclud- 
ing aliens  made  in  pursuance  of  statutory  authority 
is,  of  necessity,  due  process.  A  later  case  shows 
that  something  more  is  required.  In  the  Japanese 
Immigrant  Case,^  it  was  said:  '^This  court  has 
never  held,  nor  must  we  now  be  understood  as  hold- 
ing, that  administrative  officers,  when  executing  the 
provisions  of  a  statute  involving  the  liberty  of  per- 
sons, may  disregard  the  fundamental  principles  that 
inhere  in  'due  process  of  law'  as  understood  at  the 
time  of  the  adoption  of  the  Constitution.  One  of 
these  principles  is  that  no  person  shall  be  deprived 
of  his  liberty  without  opportunity  at  some  time  to 
be  heard  before  such  officers  in  respect  of  the  mat- 
ters upon  which  that  liberty  depends  —  not  neces- 
sarily an  opportunity  upon  a  regular,  set  occasion, 
and  according  to  the  forms  of  judicial  procedure, 
but  one  that  will  secure  the  prompt  vigorous  action 
contemplated  by  Congress,  and  at  the  same  time  be 
appropriate  to  the  nature  of  the  case  upon  which 
such  officers  are  required  to  act."^ 

While,  however,  Congress  may  lawfully  exclude, 

aXishimura  Ekiu  v.  U.  S.,  142  U.  S.  651;  Fong  Yue  Ting  v. 
U.  S.,  149  U.  S.  711. 

1  189  U.  S.  100. 

-  The  reading  of  the  opinion  of  the  court  in  U.  S.  V.  Ju  Toy,  198 
U.  S.  253,  and  the  dissenting  opinions  of  Brewer,  J.  (concurred  in  by 
Peckham,  J.),  in  that  case  and  in  U.  S.  V.  Sing  Tuck,  194  U.  S.  161, 
where  the  real  hearing  allowed  aliens  under  the  Immigration  Laws 
is  set  forth,  is  interesting  in  the  light  of  the  above  passage. 


192 


DUE  PROCESS  OF  LAW 


Chapter 
V. 


Aliens 
rightfully 
in  country 
protected 
as  citizens 
are. 


Clandes- 
tine entry. 


or  regulate  the  admission  of,  aliens,  an  alien  who 
according  to  law  is  rightfully  within  the  country, 
is  entitled  to  the  benefit  of  the  guaranties  of  life, 
liberty,  and  property  secured  by  the  Constitution 
to  all  persons  within  the  jurisdiction  of  the  United 
States,  and  is  as  fully  protected  as  if  he  were  a 
native  or  naturalized  citizen  of  the  country.^ 
Among  other  rights,  such  an  alien  is  entitled,  where 
his  life  and  liberty  are  involved,  to  the  same  regu- 
lar course  of  judicial  proceedings  as  is  afforded  to 
citizens,  and  he  can  not  be  summarily  deprived  of 
either  upon  a  mere  executive  hearing.^  Accord- 
ingly it  has  been  held,  that  the  exclusion  laws  must 
be  confined  in  their  operation  to  aliens,  and  can  not 
be  applied  to  citizens  of  the  United  States,^  nor  to 
any  person  who  is  not  in  strictness  an  alien,  al- 
though he  may  not  be  entitled  to  the  status  of  a 
citizen.^ 

But  an  equality  of  right  with  citizens  is  not 
acquired  by  a  clandestine  entry  into  the  country 
and  residence  here  for  a  period  too  brief  to  make 
the  alien  in  any  real  sense  a  part  of  our  popu- 
lation; and  the  Act  of  Congress   giving,  for  the 


3  Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538. 

4  Though  this  proposition  has  not  in  so  many  words  been  an- 
nounced, it  follows  necessarily  from  the  principle  stated  in  Hagar  v. 
Reclamation  Dist.  No.  108,  111  U.  S.  711,  considered  with  reference 
to  Yick  Wo  V.  Hopkins,  118  U.  S.  356;  Wong  Wing  v.  U.  S.,  163  U. 
S.  228 ;  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649. 

5  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649. 

6  Gonzales  v.  Williams,  192  U.  S.  1,  where  the  Acts  were  held 
not  applicable  to  a  citizen  of  Porto  Rico  since  the  Act  of  April  12, 
1900  (5  Fed.  Stat.  Annot.  762),  creating  a  civil  government  for  Porto 
Rico,  etc.,  pursuant  to  the  cession  of  the  island  by  Spain,  but  the 
court  did  not  pass  upon  the  question  whether  the  people  of  Porto 
Rico  are  citizens  of  the  United  States. 


DUE  PROCESS  OF  LAW  193' 

period  of  one  year  after  the  landing  of  such  aliens,"  Chapter 

the  right  to  deport  them  upon  the   order  of  the  '■ — 

proper  executive  officer,  whose  action  in  the  prem- 
ises is  conclusive,  is  valid.'^  Congress  has,  however, 
no  power  to  declare  that  the  offense  of  unlawful 
residence  by  an  alien  within  this  country  is  an  in- 
famous crime  punishable  upon  a  summary  hearing 
by  imprisonment  at  hard  labor  or  by  confiscation 
of  property.  Detention  or  temporary  confinement 
as  a  means  of  giving  effect  to  the  exclusion  acts 
is  valid,  but  an  infamous  punishment  can  not  be 
inflicted  unless  provision  is  made  for  a  judicial  trial 
to  establish  the  guilt  of  the  accused.^ 

The  equality  of  right  acquired  by  a  resident  ,^a^in*°^ 
alien,  except  as  affects  his  property  remaining  in  temS- 
this  country,  is  lost  by  departure  from  the  United  "'^* 
States  even  for  a  temporary  purpose;  and  when, 
after  a  temporary  absence,  he  attempts  to  return, 
he  is  subject  to  the  jurisdiction  of  the  executive 
officers  of  the  government,  as  would  be  an  alien  pre- 
senting himself  for  the  first  time  at  our  ports.  ' '  He 
can  not,"  said  the  court,  in  a  case  presenting  this 
issue,  *'by  reason  merely  of  his  domicil  in  the  United 
States  for  purposes  of  business  demand  that  his 
claim  to  re-enter  this  country  by  virtue  of  some 
statute  or  treaty  shall  be  determined  ultimately, 
if  not  in  the  first  instance,  by  the  courts  of  the 
United  States,  rather  than  exclusively  and  finally, 
in  every  instance,  by  executive  officers  charged  by 

7  Japanese  Immigrant  Case,  189  U.  S.  86,  approving  U.  S.  v. 
Yamasaka,  (C.  C.  A.)  100  Fed.  Rep.  404;  U.  S.  v.  Ju  Toy,  198  U. 
S.  253. 

8  Wong  Wing  v.  U.  S.,  163  U.  S.  228;  U.  S.  V.  Williams,  194  U. 
S.  280. 

13 


194 


DUE  PROCESS  OF  LAW 


Chapter 
V. 


Determin- 
ing status 
of  person 
entering 
country. 


an  Act  of  Congress  with  the  duty  of  executing  the 
will  of  the  political  department  of  the  government 
in  respect  of  a  matter  wholly  political  in  its  char- 
acter."^ 

Whether  a  person  seeking  to  enter  the  United 
States  is  a  citizen  and  so  entitled  to  have  his  rights 
adjudicated  by  a  regular  course  of  judicial  pro- 
cedure, or  is  an  alien  whose  rights  may  be  finally 
determined  by  an  executive  officer  of  the  govern- 
ment, is  a  question  which  presents  difficulties.  It 
has  been  set  at  rest  by  a  progressive  series  of  de- 
cisions, ending  in  the  somewhat  anomalous  holding 
that  the  decision  of  the  executive  officer  upon  the 
question  of  citizenship  is  final,  thus  lifting  an  immi- 
gration official  above  all  regular  courts  by  allowing 
him  to  determine  finally  the  existence  of  his  own 
jurisdiction.^  In  1895  it  was  held,  in  the  case  of  an 
admitted  alien,  that,  under  the  Act  of  Congress  of 
August  18,  1894,  the  decision  of  the  immigration 
commissioner  was  final  of  the  aliens'  right  to  enter 
* '  by  virtue  of  some  law  or  treaty. "  ^  In  1898  the 
decision  of  an  administrative  official  excluding  a 

9  Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538,  548,  distinguishing  Lau 
Ow  Bew  V.  U.  S.,  144  U.  S.  47,  and  Gee  Fook  Sing  v.  U.  S.,  7  U.  S. 
App.  27,  49  Fed.  Rep.  147,  as  having  been  decided  before  the  stat- 
ute making  executive  decision  final. 

1  U.  S.  V.  Ju  Toy,  198  U.  S.  253. 

2  Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538. 

This  decision  has  been  virtually  reaffirmed  in  cases  of  admitted 
aliens  which  involved  an  alien's  right  to  travel  through  the  United 
States  from  one  of  its  ports  to  a  foreign  country.  The  alien  has 
been  stopped  at  the  port  of  his  entry  into  the  United  States  and 
ordered  deported  to  his  own  country,  because  he  has  failed  to  satisfy 
the  collector  of  customs  that  he  intended  in  good  faith  to  continue  his 
journey  to  such  foreign  country,  and  this  proceeding  has  been  ad- 
judged to  be  valid.  Fok  Yung  Yo  v.  U.  S.,  185  U.  S.  296;  Lee  Gon 
Yung  V.  U.  S.,  185  U.  S.  306. 


DUE  PROCESS  OF  LAW  195 

person  as  an  alien  was  reversed  on  habeas  corpus,    Ch^ter 

where  there  was  an  admission  on  behalf  of  the  gov-  ■ 

ernment  of  facts  which  made  the  person  excluded 
a  citizen  of  the  United  States.^  This  decision  led 
to  many  claims  of  citizenship  on  the  part  of  ex- 
cluded aliens,  upon  the  theory  that  such  a  claim 
ousted  the  jurisdiction  of  the  immigration  ofiBcer. 
But  in  1902  when  the  point  was  presented  to  the 
Supreme  Court,"*  it  was  held  that  the  mere  claim 
of  citizenship  did  not  affect  the  official's  jurisdic- 
tion ;  that ' '  the  facts  on  which  such  a  claim  is  rested 
must  be  made  to  appear."  The  court  observ^ed: 
''It  is  impossible  for  us  to  hold  that  it  is  not  com- 
petent for  Congress  to  empower  a  United  States 
commissioner  to  determine  the  various  facts  on 
which  citizenship  depends." 

It  might  be  inferred  from  these  expressions  that  t'^S  de- 
when  the  facts  were  made  to  appear,  a  decision  revrewabie. 
against  the  claim  of  citizenship  would  be  reviewed 
by  the  courts,  and  that  the  jurisdiction  of  the  immi- 
gration officer  was  to  decide  this  question  in  the  first 
instance  only.  In  1904  the  court  held  that  the  per- 
son whose  claim  to  citizenship  was  decided  adversely 
by  an  immigration  inspector  had  no  right  of  imme- 
diate recourse  to  the  courts;  an  appeal  must  first 
be  taken,  in  accordance  with  the  procedure  marked 

3  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649. 

This  case  confirmed  a  series  of  decisions  of  the  courts  of  the 
Ninth  Circuit,  beginning  in  1884  with  In  re  Look  Tin  Sing,  10  Sawy. 
fU.  S.)  353,  21  Fed.  Rep.  905,  wherein  the  opinion  was  rendered  by 
Mr.  Justice  Field,  as  circuit  justice.  See  In  re  Wong  Kim  Ark,  71 
Fed.  Rep.  382. 

*  Chin  Bak  Kan  v.  U.  S.,  186  U.  S.  193. 

As  to  what  evidence  of  citizenship  is  necessary,  see  Ark  Foo  V. 
U.  S.,  (C.  C.  A.)   128  Fed.  Rep.  697. 


196  DUE  PROCESS  OF  LAW 

Chapter  out  by  the  statute,  to  the  secretary  of  the  treasury, 
and  without  such  appeal  the  courts  will  not  enter- 
tain the  question  on  habeas  corpus.  The  decision 
was  further  based  on  the  ground  that  the  granting 
of  habeas  corpus  depends  on  making  a  prima  facie 
case,  which  the  petitioner  had  not  done.'  A  case 
in  1905  went  further.  A  person,  claiming  citizen- 
ship, was  denied  the  right  to  enter  the  United  States 
by  the  collector  of  the  port  of  San  Francisco.  He 
appealed  to  the  secretary  of  commerce  and  labor, 
to  whom,  since  the  creation  of  that  department,  the 
appeal  lay,  and  upon  confirmation  of  the  ruling,  ap- 
plied to  the  District  Court  of  the  United  States  for 
a  habeas  corpus,  and  the  District  Court  decided, 
''seemingly  on  new  evidence,"  that  the  petitioner 
was  a  native  bom  citizen  of  the  United  States.  The 
Supreme  Court  held  that  the  action  of  the  District 
Court  was  error;  that  it  should  have  determined 
the  writ  without  a  hearing  on  new  and  further  evi- 
dence as  to  citizenship  in  the  absence  of  any  showing 
of  an  abuse  of  discretion  on  the  part  of  the  execu- 
tive officer;  because  in  the  absence  of  such  showing 
the  decision  of  the  secretary  of  commerce  and  labor 
was   conclusive,   even  upon   the    question   of   citi- 

5U.  S.  V.  Sing  Tuck,  194  U.  S.  161,  reversing  (C.  C.  A.)  128 
Fed.  Rep.  592. 

The  court  seems  to  have  been  influenced  in  this  case  by  the  con- 
sideration, which  is  surely  not  a  judicial  one,  that  a  contrary  de- 
cision would  result  in  overwhelming  the  courts  with  a  flood  of  liti- 
gation. "  We  are  of  opinion,"  it  was  said,  "  that  the  attempt  to 
disregard  and  override  the  provisions  of  the  statutes  and  the  rules 
of  the  department  and  to  swamp  the  courts  by  a  resort  to  them  in 
the  first  instance  must  fail."  It  is  to  be  noted  that  in  U.  S.  v. 
Wong  Kim  Ark,  169  U.  S.  649,  the  habeas  corpus  seems  to  have 
been  granted  immediately  after  the  decision  of  the  collector  of  the 
port  of  San  Francisco. 


DUE  PROCESS  OF  LAW  197 


zenship,  on  the  nonexistence  of  which  jurisdiction    Chapter 
depends.^  '■ — 

INHABITANTS   OF   ACQUIBED   TERRITOEY. 

When  territory  is  ' '  incorporated  into  the  United  -jncorpo. 
States,"  it  becomes  subject  to  the  Constitution  of  [heunued 
the  United  States,  and  its  inhabitants  are  entitled 
to  the  benefit  of  the  guaranties  of  life,  liberty,  and 
property  contained  in  the  first  eight  amendments 
to  that  instruments     Territory  may  become  incor- 

6  U.  S.  V.  Ju  Toy,  198  U.  S.  253. 

In  U.  S.  V.  Sing  Tuck,  194  U.  S.  161,  170,  the  court,  in  the  state 
of  the  record,  declined  to  pass  upon  the  question  which  was  pre- 
sented later  in  U.  S.  v.  Ju  Toy,  198  U.  S.  253.  In  Ju  Toy's  case  the 
court  proceeded  on  the  ground,  inter  alia,  that  the  question  was 
virtually  settled  by  precedent,  including  Sing  Tuck's  Case. 

7  Dorr  V.  U.  S.,  195  U.  S.  138;  Rassmussen  V.  U.  S.,  197  U.  S.  516. 
The  question  of  the  status  of  the  inhabitants  of  the  territories 

ceded  by  Spain  by  the  Treaty  of  Paris  as  a  result  of  the  Spanish- 
American  War  came  prominently  before  the  court  in  the  so-called 
"  Insular  Cases,"  namely,  De  Lima  v.  Bidwell,  182  U.  S.  1 ;  Goetze  V. 
U.  S.,  182  U.  S.  221;  Dooley  v.  U.  S.,  182  U.  S.  222;  Armstrong  V. 
U.  S.,  182  U.  S.  243;  Downes  v.  Bidwell,  182  U.  S.  244. 

The  specific  matter  involved  was  the  authority  of  Congress  to 
regulate  tariflF  relations  between  the  United  States  and  Porto  Rico, 
but  the  whole  siibject  of  the  status  of  acquired  territory  and  the 
powers  of  Congress  with  respect  thereto  was  exhaustively  discussed, 
especially  in  Do^vnes  v.  Bidwell.  Unfortunately  the  members  of 
the  court  could  come  to  no  agreement  as  to  the  reasoning  upon 
which  the  decision  should  stand,  and  four  justices  dissented  from 
the  ultimate  disposition  of  the  case.  What  may  be  called  the  plu- 
rality opinion  was  rendered  by  White,  J.,  speaking  also  for  Shiras 
and  McKenna,  J.J. ;  Gray,  J.,  who  agreed  in  substance  with  the 
plurality,  delivered  a  concurring  opinion;  while  Brown,  J.,  delivered 
the  opinion  of  the  court,  speaking,  except  as  to  the  disposition  of 
the  case,  for  himself  alone. 

The  plurality  opinion  stated  the  doctrine  of  "  incorporation  "  as 
laid  down  in  the  text  above,  and  this  doctrine  is  formally  restated 
in  Rassmussen  v.  U.  S.,  197  U.  S.  516,  in  the  opinion  of  the  court 
by  White,  J.;  Harlan  and  Brown,  J.J.,  in  concurring  opinions  criti- 
cised the  incorporation  theory.  Mr.  Justice  Harlan  has  through- 
out all  cases  presenting  the  question  taken  the  view  that  the  Con- 


198 


DUE  PROCESS  OF  LAW 


Chapter 
V. 


Status  of 
territory- 
annexed 
but  not 
"incorpo- 
rated.'' 


porated  into  the  United  States,  as  a  result  of  the 
terms  of  the  treaty  of  cession  by  which  the  United 
States  as  a  sovereign  nation  acquires  the  territory 
from  the  sovereignty  ceding  it,  and  by  legislation 
on  the  part  of  Congress  with  reference  to  the  terri- 
tory after  its  acquisition.^  Until  it  is  incorporated 
by  action  on  the  part  of  Congress,  ''the  territory 
is  to  be  governed  under  the  power  existing  in  Con- 
gress to  make  laws  for  such  territories,  and  subject 
to  such  constitutional  restrictions  upon  the  powers 
of  that  body  as  are  applicable  to  the  situation."^ 
The  bare  annexation  of  territory  then  does  not 
ipso  facto  extend  over  it  the  provisions  of  the  Con- 
stitution, and  there  may  be  a  period  of  longer  or 
shorter  duration  during  which  the  enactments  of 
Congress  relative  to  the  territory  acquired  are  the 
supreme  law,  subject,  however,  to  certain  "funda- 
mental limitations  in  favor  of  personal  rights,"^ 


stitution  with  all  its  guaranties  applies  to  all  the  territory  acquired 
by  the  United  States.  Mr.  Justice  Brown,  referring  for  a  full  expo- 
sition of  his  views  to  Downes  v.  Bidwell,  182  U.  S.  244,  says:  "My 
position  ...  is  simply  that  the  Constitution  does  not  apply  to 
territories  acquired  by  treaty  until  Congress  has  so  declared,  and 
that  in  the  meantime,  under  its  power  to  regulate  the  territories,  it 
may  deal  with  them  regardless  of  the  Constitution,  except  so  far 
as  concerns  the  natural  rights  of  their  inhabitants  to  life,  liberty  and 
property.  .  .  .  My  own  view  is,  and  has  been,  that  Congress  in 
dealing  with  newly  acquired  territory  is  unfettered  by  the  Constitu- 
tion, unless  it  formally  or  by  implication  extends  the  Constitution 
to  it."     Rassmussen  f.  V.  S.,  197  U.  S.  531,  .532. 

8  Rassmussen  v.  U.  S.,  197  U.  S.  516.     And  see  the  preceding  note. 

9  Hawaii  v.  Mankichi,  190  U.  S.  197 ;  Dorr  v.  U.  S.,  195  U.  S.  143. 
1  Church  of  Jesus  Christ  V.   U.   S..    136  U.   S.   1,  44;   Downes   v. 

Bidwell,  182  U.  S.  244,  277,  per  Brown,  J.,  and  at  p.  295,  per  White. 
Shiras,  and  MeKenna,  J.J. ;  Dorr  v.  U.  S.,  195  U.  S.  138.  See  also 
Murphy  r.  Ramsey,  114  U.  S.  15.  44. 

These  limitations  in  such   a  case  "  woiild   exist   rather  by  infer- 
ence and  the  general   spirit   of   the  Constitution   from   which   Con- 


DUE  PROCESS  OF  LAW  199 


which  are  found  in  the  spirit  of  the  Constitution,    chapter 
How  long  the  period  before  incorporation  shall  last  '■ — 


is  a  question  for  the  political  departments  of  the 
government,  and  what  those  rights  are  which  in  the 
meanwhile  limit  the  uncontrolled  exercise  of  legis- 
lative discretion,  ^^must  be  decided  as  questions 
arise.  "2  A  distinction,  however,  has  been  made 
between  those  provisions  of  the  Constitution  which 
prohibit  the  exercise  of  certain  powers  under  any 
and  all  circumstances,  such  as  Art.  I,  sec.  9,  cl.  3, 
prohibiting  absolutely  bills  of  attainder  and  ex  post 
facto  laws,  and  those  contained  in  the  National  Bill 
of  Rights  guaranteeing  certain  rights  and  privi- 
leges.^ The  right  of  jury  trial  or  of  indictment  by 
a  grand  jury  as  provided  for  in  the  Fifth  and  Sixth 
Amendments  has  been  held  not  to  be  included 
among  the  rights  to  which  the  inhabitants  of  terri- 
tory acquired  but  not  incorporated  can  lay  claim.^ 
"Whether  among  these  fundamental  rights  is  due 
process  of  law  is  a  question  which  has  not  arisen, 
but  there  can  be  no  doubt  that  when  it  does  arise 
it  will  be  decided  in  the  affirmative. 

Territory  *' incorporated  into  the  United  States"  ^ryln"'" 
the  inhabitants  of  which  are  entitled  to  the  rights 


titled  to  all 
guaranties. 


gress  derives  all  its  powers,  than  by  any  express  and  direct  ap- 
plication of  its  provisions."  Church  of  Jesus  Christ  v.  U.  S.,  136 
U.  S.  1. 

2  Dorr  V.  U.  S.,  195  U.  S.  149. 

3  Downes  v.  Bidwell,  182  U.  S.  277,  per  Brown,  J.  See  also  Dred 
Scott  V.  Sandford,  19  How.  (U.  S.)  614,  per  Curtis,  J.;  Dorr  v.  U.  S., 
195  U.  S.  138. 

In  the  passage  cited  from  Downes  v.  Bidwell,  it  is  said:  "We 
do  not  wish,  however,  to  be  understood  as  expressing  an  opinion 
how  far  the  bill  of  rights  contained  in  the  first  eight  amendments 
is  of  general  and  how  far  of  local  application." 

*  Hawaii  v.  Mankichi,  190  U.  S.  197;  Dorr  v.  U.  S.,  195  U.  S.  138. 


20O  DUE  PROCESS  OF  LAW 

Cbanter    guaranteed  by  the  first  eight  amendments,  includes 

'■ —  the  Territories  in  a  strict  and  technical  sense,  being 

those  which  lie  within  the  United  States,  between 
the  Atlantic  and  Pacific  oceans,^  and  the  Territories 
of  Alaska  and  Hawaii.*^  The  power  of  Congress  in 
legislating  for  the  District  of  Columbia  and  all 
places  acquired  by  the  United  States  within  the  sev- 
eral States  for  forts,  arsenals,  etc.,^  is  subject  to  the 
like  restrictions.^ 

5  That  the  Federal  Bill  of  Rights  extends  to  the  territories  within 
the  limits  of  the  United  States  previous  to  the  purchase  of  Alaska 
in  1867,  seems  after  some  hesitation  in  earlier  eases  (Church  of 
Jesus  Christ  v.  U.  S.,  136  U.  S.  1)  settled  by  adjudication  beyond 
controversy.  American  Pub.  Co.  v.  Fisher,  166  U.  S.  464;  Spring- 
ville  V.  Thomas,  166  U.  S.  707;  Thompson  v.  Utah,  170  U.  S.  343; 
Black  V.  Jackson,  177  U.  S.  349;  Rassmussen  v.  U.  S.,  197  U.  S.  516. 

6  Alaska  is  within  the  Federal  Bill  of  Rights.  Steamer  Coquit- 
1am  V.  U.  S.,  163  U.  S.  346;  Binns  v.  U.  S.,  194  U.  S.  486;  Rassmus- 
sen V.  U.  S.,  197  U.  S.  516. 

Hawaii  is  technically  a  territory  of  the  United  States  since  the 
Act  of  Congress  of  April  30,  1900,  31  U.  S.  Stat,  at  L.  141,  c.  339; 
3  Fed.  Stat.  Annot.  186.     Hawaii  v.  Mankichi,  190  U.  S.  197. 

7  Const.  U.  S.,  Art.  I,  sec.  8,  el.  17;  8  Fed.  Stat.  Annot.  663. 

8  "  There  is  nothing  in  the  history  of  the  Constitution  or  of  the 
original  amendments  to  justify  the  assertion  that  the  people  of  this 
District  [of  Columbia]  may  be  lawfully  deprived  of  the  benefit  of 
any  of  the  constitutional  guaranties  of  life,  liberty,  and  property." 
Callan  V.  Wilson,  127  U.  S.  540,  550.  See  Loughborough  v.  Blake, 
5  Wheat.  (U.  S.)  317,  commented  on  in  Downes  v.  Bidwell,  182  U.  S. 
244,  259,  262;  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1. 


T 


CHAPTER  VI. 

THE    PARAMOUNT    RIGHTS    OF    THE    STATE 
AND    DUE    PROCESS. 

HE  guaranties  of  life,  liberty  and  property  con-    Chapter 
tained  in  the  Federal  and  State  Constitutions 


are  not  absolute;  for  all  private  rights,  how-  righfs^ 

.     .  yield  to 

ever  fundamental,  are  enjoyed  by  individuals  as  general 
members  of  organized  society,  and  subject  to  the 
paramount  right  of  the  state,  the  embodiment  of 
society,  to  appropriate  or  modify  them  when  actual 
necessity  or  the  public  welfare  requires  such  a 
course.^  This  paramount  right  of  the  state  is  sus- 
ceptible of  classification,  in  ordinary  cases,  under 
three  heads,  the  police  power,  the  power  of  eminent 
domain,  and  the  power  of  taxation. ^  Each  of  these 
powers  is  incident  to  the  sovereignty  of  the  state, 
and  all  of  them  reside  in  and  are  exercised  by  the 
legislative  department  of  government. 

The  exercise  of  all  these  powers  proceeds  on  the  J^^fg'^"' 
theory  that  the  public  welfare  requires  the  sacrifice  '^°'^^^'^- 
of  private  rights.    In  eminent  domain,  the  sacrifice 

1  Crowley  v.  Christensen,  137  U.  S.  86;  California  Reduction  Co. 
V.  Sanitary  Reduction  Works,  199  U.  S.  306. 

2  Though  "  the  police  power "  is  used  by  the  Supreme  Court  of 
the  United  States  and  by  the  courts  generally  to  include  the  state's 
legislative  power  when  exerted  in  making  regulations,  not  only  for 
the  safety,  morals,  and  health  of  the  people,  but  for  the  economic 
welfare  of  the  community,  it  is  doubtful  whether  this  usage  does  not 
produce  confusion.  The  general  legislative  power  differs  in  funda- 
mental particulars  from  the  power  to  provide  for  public  safety, 
health,  and  morals.     See  infra,  p.  300. 

201 


202  DUE  PROCESS  OF  LAW 

Chapter    of  his  stiict  property  rights  is  made  up  to  the  owner 

'• —  by  direct  payment  of  the  value  of  the  property 

taken.3  In  taxation,  the  theory  is  that  the  value  of 
the  taxes  exacted  is  returned  indirectly  in  the  bene- 
fits derived  by  the  tax-payer  from  the  government, 
to  the  support  of  which  his  payments  contribute; 
and  that  the  benefits  thus  indirectly  conferred  are 
in  exact  proportion  to  the  amount  of  his  contribu- 
tion.^ Upon  these  considerations  a  distinction  be- 
tween the  taxing  power  and  the  power  of  eminent 
domain  is  founded.  "In  case  of  taxation,"  it  has 
been  said,  ''the  citizen  pays  his  quota  of  the  common 
burden.  When  his  land  is  sequestered  for  the  public 
use  he  contributes  more  than  such  quota,  and  this  is 
the  distinction  between  the  effect  of  the  exercise  of 
the  taxing  power  and  that  of  eminent  domain.  When, 
then,  the  overplus  beyond  benefits  from  these  local 
improvements  is  laid  upon  a  few  landowners,  such 
citizens  with  respect  to  such  overplus  are  required 
to  defray  more  than  their  share  of  the  public  outlay, 
and  the  coercive  act  is  not  within  the  proper  scope 
of  the  power  to  tax. ' '  ^  But  the  practical  result  of 
this  distinction  is  reduced  to  a  minimum,  because  of 

3  "  When  private  property  is  taken  for  public  use,  the  owner  re- 
ceives full  compensation.  The  taking  differs  from  a  sale  bv  him 
only  in  that  the  transfer  of  title  may  be  compelled,  and  the  amount 
of  compensation  be  determined  by  a  jury  or  officers  of  the  jjovern- 
ment  appointed  for  that  purpose."  Mobile  County  v.  Kimball,  102 
U.  S.  691.  See  also  Union  Eefrigerator  Transit  Co.  v.  Kentucky, 
199  U.  S.  194. 

4  Mobile  County  v.  Kimball,  102  U.  S.  691;  Illinois  Cent.  R.  Co. 
V.  Decatur,  147  U.  S.  190;  Rolph  v.  Fargo,  7  N.  Dak.  640;  Webster  r. 
Fargo,  9  N.  Dak.  208. 

5  State  1'.  Newark,  37  N.  J.  L.  415,  quoted  in  Norwood  v.  Baker, 
172  U.  S.  269,  284. 


DUE  PROCESS  OF  LAW  203 

the   large   discretion   vested   in   the   legislature   in    Chapter 

equating  benefits  to  burdens.*'  '■ — 

The  police  power  is  different  in  its  operation.  It  J'°Jj^^. 
regulates  the  enjoyment  of  personal  or  property  ti3un.'^" 
rights  on  the  principle  that  they  must  be  so  exercised  ''^"^^^''^* 
as  to  permit  an  equal  enjojTnent  in  others,  as  ex- 
pressed in  the  maxim,  sic  utere  tuo  ut  alienum  non 
laeda\s?  Or,  it  may  destroy  property  on  the  ground 
that  destruction  is  necessary  to  the  self -protection  of 
the  community,  for  solus  populi  est  suprema  lex. 
Unlike  eminent  domain,  however,  it  always  proceeds 
without  actual  compensation;  and  frequently,  un- 
like taxation,  there  is  not  even  in  theory  any  return 
in  benefits  for  property  confiscated  or  liberty  cur- 
tailed. It  is  true  that  in  a  number  of  typical  in- 
stances an  equivalent  return  in  the  common  benefits 
conferred  on  the  community  may  be  postulated.  This 
is  the  case  when  loss  results  to  a  person  or  class  from 
the  prohibition  of  particular  uses  of  property  or  the 
exercise  in  certain  respects  of  personal  liberty,  or 
from  the  forced  expenditure  of  money  in  guarding 
against  apprehended  ills.  Here  it  is  usual  to  say 
that  the  person  or  persons  who  suffer  an  undoubted 
loss  are  compensated  for  it  by  sharing  in  the  general 
benefits  which  the  regulations  from  which  the  loss 
results  are  intended  and  calculated  to  secure.^ .  No 
compensation  is,  however,  necessary,  for  such  regu- 


6  See  infra,  p.  253. 

7  Richmond,  etc.,  R.  Co.  V.  Richmond,  96  U.  S.  521,  upholding  the 
prohibition  of  steam  locomotives  on  city  streets. 

8  1  Dill.  Munic.  Corp.,  4th  ed.,  §  141;  Ex  p.  Lacey.  108  Cal.  326; 
State  V.  Campbell,  64  N.  H.  402 ;  Health  Dept.  v.  Trinity  Church,  145 
N.  Y.  32;  Thorpe  v.  Rutland,  etc.,  R.  Co.,  27  Vt.  140,  G2  Am.  Dec. 
625, 


204  DUE  PROCESS  OF  LAW 

Chapter    lation  is  not  an  appropriation  of  private  property 

rights  to  a  public  use ;  there  is  merely  the  restraint 

or  regulation  of  its  private  use  by  the  owner.^ 
fequen'c°es'  Again,  regulatiou  may  require  the  establishment 

no  taking.  ^^  laws  for  the  use  of  property  or  rights,  the  infrac- 
tion of  which  is  attended  with  penal  consequences, 
which  may  include  the  loss  of  the  property  or  rights 
misused.^  In  such  a  case,  there  has  been  no  appro- 
priation of  private  rights  to  public  use,  but  the  loss 
of  the  particular  property  or  rights  is  in  the  nature 
of  a  punishment  for  violation  of  law ;  the  theory  upon 
which  comjDensation  is  given  does  not  apply,  and 
none  is  required.^ 

The  police  power  may  also  act  in  eases  where 

9  Com.  V.  Alger,  7  Cush.  (Mass.)  53;  State  v.  Griffin,  69  N.  H.  1; 
Health  Dept.  v.  Trinity  Church,  145  N.  Y.  32. 

)  "  A  prohibition  simply  upon  the  use  of  property  for  purposes  that 
are  declared,  by  valid  legislation,  to  be  injurious  to  the  health, 
morals,  or  safety  of  the  community,  cannot,  in  any  just  sense,  be 
deemed  a  taking  or  an  appropriation  of  property  for  the  public 
benefit.  Such  legislation  does  not  disturb  the  owner  in  the  control 
or  use  of  his  property  for  lawful  purposes,  nor  restrict  his  right 
to  dispose  of  it,  but  is  only  a  declaration  by  the  State  that  its  use 
by  any  one,  for  certain  forbidden  purposes,  is  prejudicial  to  the  pub- 
lic interests."     Mugler  V.  Kansas,  123  U.  S^23.J 

1  In  Fisher  r.  McGirr,  1  Gray  (Mass.)  1,  61  Am.  Dec.  381,  Chief 
Justice  Shaw  said  that  "  the  property  of  which  injurious  or  dan- 
gerous use  is  made  shall  be  seized  and  confiscated,  because  either  it 
is  so  unlawfully  used  by  the  owner  or  person  having  the  power  of 
disposal  or  by  some  person  with  whom  he  has  placed  and  intrusted 
it,  or  at  least  that  he  has  so  carelessly  and  negligently  used  his 
power  and  control  over  it  that  by  his  default  it  has  fallen  into  the 
hands  of  those  who  have  made  and  intend  to  make  the  injurious 
or  dangerous  use  of  it,  of  which  the  public  have  a  right  to  complain, 
and  from  which  they  have  a  right  to  be  relieved.  Therefore,  as  well 
to  abate  the  nuisance  as  to  punish  the  offending  or  careless  owner 
the  property  may  be  justly  declared  forfeited,  and  either  sold  for  the 
public  benefit  or  destroyed,  as  the  circumstances  of  the  case  may 
require  and  the  wisdom  of  the  legislature  direct." 

2  Fisher  v.  McGirr,  1  Gray  (Mass.)    1,  61  Am.  Dec.  381,  400. 


DUE  PROCESS  OF  LAW  205 


there  is  no  question  of  violation  of  law,  as  in  the  de-    Chapter 

.  vi. 

struetion  of  houses,  to  prevent  spread  of  fire,  or  of 


diseased  animals,  infected  clothes,  or  the  like.  In  Srucdon 
cases  of  this  character  the  destruction  is  an  applica-  "^  '^  '°^' 
tion  of  the  maxim,  salus  populi  est  suprema  lex, 
and  the  principle,  firmly  established  in  the  absence 
of  statute,  that  the  owner  is  entitled  to  no  compensa- 
tion, rests  on  the  ground  of  damage  without  legal 
injury.  The  loss  is  attributed  to  the  overruling 
necessity  whence  the  destruction  resulted  rather  than 
to  the  intervention  of  man  by  which  it  was  accom- 
plished.^ 

When,  however,  public  purposes  require  for  the  Both  police 
effective  exercise  of  the  police  power  an  actual  ap-  doiLSn- 
propriation  of  the  property  of  citizens  chargeable  ^°^^^'^- 
with  no  wrong,  the  eminent  domain  as  well  as  the 
police  power  is  involved  and  compensation  must  be 
made  to  the  owners.^     Such  a  case  has  been  held  to 
exist  where,  in  order  to  remove  a  nuisance  result- 
ing from  the  undrained  condition  of  a  tract  of  low 
lands  within  a  city,  the  legislature  passed  an  act 
providing  for  the  condemnation  of  the  lands,  and  the 
transfer  of  a  fee  simple  title  to  the  city,  upon  the 
payment  of  compensation,  and  for  the  filling  in  of 
the  lands  by  the  city  so  as  to  remove  the  nuisance. 
The  purpose  of  this  legislation  was  a  valid  police 
purpose,  the  removal  of  a  nuisance  which  consti- 

3  Maleverer  V.  Spinke,  1  Dyer  366 ;  Prerogative  of  the  King,  12 
Coke  13;  Mouse's  Case,  12  Coke  63;  British  Cast  Plate  Manufac- 
turers V.  Meredith,  4  T.  R.  794,  797,  per  Buller,  J.;  Bowditch  V.  Bos- 
ton, 101  U.  S.  16;  Ralli  v.  Troop,  157  U.  S.,  405;  Russell  V.  New- 
York,  2  Den.  (N.  Y.)  461;  Respubliea  v.  Sparhawk,  1  Dall.  (Pa.) 
357. 

4  Sweet  V.  Rechel,  159  U.  S.  380. 


206  DUE  PROCESS  OF  LAW 

Chapter    tuted  a  menace  to  public  health.     In  the  accomplish- 

ment  of  this  purpose  the  legislature,  in  the  exercise 

of  its  discretion,  found  it  necessary  to  take  title  to 
the  property  for  a  public  purpose ;  that  is,  to  exer- 
cise the  power  of  eminent  domain.  The  property 
owner  could  not  object  that  his  property  was  decreed 
forfeited  to  the  city  under  the  police  power  without 
giving  him  a  hearing  as  to  its  condition,  for  there 
was  no  confiscation,  but  an  appropriation  under  the 
power  of  eminent  domain  with  full  compensation. 
Nor  could  he  object  that  the  taking  was  unnecessary 
for  the  mere  destruction  of  the  nuisance,  for  the 
city  was  put  to  great  expense  in  filling  in,  and  the 
legislature  was  justified  in  its  discretion  in  resorting 
under  the  circumstances  to  the  power  of  eminent 
domain.^ 

Whether  in  any  particular  instance  the  police 
power  only  is  exerted,  or  whether  the  power  of  emi- 
nent domain  is  also  involved  so  that  compensation  is 
required,  may  depend,  it  has  been  held,  on  the  value 
of  the  rights  affected  and  the  extent  of  the  State's 
interference  therewith.  But  this  question  will  be 
examined  in  another  connection.* 
Limiting  If  the  rights  of  the  individual  are  limited  by  the 

effect  of  c5  ^ 

€s"s!  '"^°*^'  powers  which  represent  the  common  organized  action 
of  society,  the  exercise  of  the  latter  in  their  turn 
is  guarded  by  constitutional  safeguards,  either  speci- 
fied guaranties  or  those  fundamental  principles  of 
justice  connoted  by  the  phrase  "due  process  of  law.'* 
This  implies  generality  of  laws,  the  right  to  a  hear- 

8  Sweet  V.  Eechel,  159  U.  S.  380;  Dingley  X).  Boston,  100  Mass. 
544. 

6  See  in^ra,  p.  375. 


DUE  PROCESS  OF  LAW  207 

ing  before  condemnation,  and  forbids  action  merely    Chapter 

arbitrary.    But  the  application  of  these  principles  '■ — 

may  vary  with  the  subject-matter  of  the  case,  the 
end  to  be  accomplished,  and  the  power  of  the  State 
which  is  exerted. 


CHAPTER  VII. 

TAXATION. 
THE   TAXING   POWEK   AND   ITS   EXTENT. 

ch^Pfer    T]^  t}je  gj.gat  case  of  McCulloch  v.  Maryland,^  Chief 

1     Justice  Marshall  stated  the  basis  of  the  taxing 

abuses  power  and  the  security  against  its  abuse  as  fol- 

against.  lows :  ''The  power  of  taxing  the  people  and  their 
property  is  essential  to  the  very  existence  of  govern- 
ment, and  may  be  legitimately  exercised  on  the  ob- 
jects to  which  it  is  applicable  to  the  utmost  extent  to 
which  the  government  may  choose  to  carry  it.  The 
only  security  against  the  abuse  of  this  power  is 
found  in  the  structure  of  the  government  itself.  In 
imposing  a  tax  the  legislature  acts  upon  its  constit- 
uents. This  is  in  general  a  sufficient  security  against 
erroneous  and  oppressive  taxation.  The  people  of 
a  State,  therefore,  give  to  their  government  a  right 
of  taxing  themselves  and  their  property,  and  as  the 
exigencies  of  government  can  not  be  limited  they 
prescribe  no  limits  to  the  exercise  of  this  right,  rest- 
ing confidently  on  the  interest  of  the  legislator  and 
on  the  influence  of  the  constituents  over  their  rep- 
resentative to  guard  them  against  its  abuse."    The 

14  Wheat.  (U.  S.)  316.  In  this  case  the  chief  justice  used  the 
famous  expression,  so  often  quoted,  "  the  power  to  tax  involves  the 
power  to  destroy;  "  an  effect  of  the  power  of  which  Congress  availed 
itself  in  taxing  State  banks.  Veazie  Bank  v.  Fenno,  8  Wall.  (U.  S. ) 
533;  Merchants'  Nat.  Bank  v.  U.  S.,  101  U.  S.  1.  See  also  Knowlton 
V.  Moore,  178  U.  S.  41;  McCray  v.  U.  S.,  195  U.  S.  27. 

208 


DUE  PROCESS  OF  LAW  209 


power  to  tax  extends  to  persons,  property,  and  occu-    chapter 


pations;  it  touclies  property  in  every  shape,  in  its 
natural  condition,  in  its  manufactured  state,  and  in 
its  various  transmutations ;  it  may  reach  business  in 
the  almost  infinite  forms  in  which  it  is  conducted, 
in  professions,  in  commerce,  in  manufactures,  and  in 
transportation.^  It  includes  also  of  necessity  as  an 
inseparable  incident  the  power  of  apportionment. 
''The  power  of  taxing  and  the  power  of  apportion- 
ing taxation,"  it  has  been  said,  *'are  identical  and 
inseparable.  Taxes  can  not  be  laid  without  appor- 
tionment ;  and  the  power  of  apportionment  is  there- 
fore unlimited,  unless  it  be  restrained  as  a  part  of 
the  power  of  taxation. ' '  ^ 

To  the  legislative  branch  of  the  government  it  JfvJSf 
belongs  exclusively  to  impose  taxes  and  to  provide  ^"'^'"^'• 
for  their  levy  and  collection.  This  principle  is 
among  those  which  are  inherited  from  the  constitu- 
tion of  England,  and  applies  alike  to  the  national 
and  State  governments.^  In  Meriwether  v.  Garrett,^ 
Mr.  Justice  Field  said:  ''The  levying  of  taxes  is 
not  a  judicial  act.  It  has  no  elements  of  one.  It  is 
a  high  act  of  sovereignty,  to  be  performed  only  by 
the  legislature  upon  considerations  of  policy,  neces- 
sity, and  the  public  welfare.    In  the  distribution  of 

2  state  Tax  on  Foreign-Held  Bonds,  15  Wall.  (U.  S.)  319;  Hagar 
V.  Reclamation  Dist.  No.  168,  111  U.  S.  701. 

3  People  V.  Brooklyn,  4  N.  Y.  419. 

4  Heine  v.  Levee  Com'rs,  19  Wall.  (U.  S.)  655,  660;  State  Rail- 
road Tax  Cases,  92  U.  S.  575,  615;  Palmer  v.  McMahon,  133  U.  S. 
660,  669. 

5  102  U.  S.  472.  The  quotation  is  from  a  concurring  opinion 
written  for  himself  and  Miller  and  Bradley,  J.J.,  because  "  the 
judgment  is  not  accompanied  by  a  statement  of  the  reasons  on  which 
it  is  founded." 

14 


210  DUE  PROCESS  OF  LAW 

Chapter  the  powers  of  government  in  this  country  into  three 
^— —  departments,  the  power  of  taxation  falls  to  the  leg- 
islative. It  belongs  to  that  department  to  deter- 
mine what  measures  shall  be  taken  for  the  public 
welfare  and  to  provide  the  revenues  for  the  support 
and  due  administration  of  the  government  through- 
out the  State  and  in  all  its  subdivisions.  Having 
the  sole  power  to  authorize  the  tax,  it  must  equally 
possess  the  sole  power  to  prescribe  the  means  by 
which  the  tax  shall  be  collected,  and  to  desig- 
nate the  officers  through  whom  its  will  shall  be  en- 
forced. ' ' 
diSificl-  The  legislature  may  in  its  discretion  classify  the 

ex"nfpt?on.  subjccts  of  taxation  and  may  provide  different 
methods  of  assessment  and  collection  for  the  differ- 
ent classes,  the  only  limitation  being  that  all  persons 
or  property  within  a  given  class  shall  be  treated 
alike.^  The  State  ''may,  if  it  chooses,  exempt  cer- 
tain classes  of  property  from  any  taxation  at  all, 
such  as  churches,  libraries,  and  the  property  of  char- 
itable institutions.  It  may  impose  different  specific 
taxes  upon  different  trades  and  professions,  and 
may  vary  the  rates  of  excise  upon  various  products ; 
it  may  tax  real  estate  and  personal  property  in  a 
different  manner ;  it  may  tax  visible  property  only, 
and  not  tax  securities  for  payment  of  money;  it 
may  allow  deductions  for  indebtedness,  or  not  allow 
them.  All  such  regulations,  and  those  of  like  char- 
acter, so  long  as  they  proceed  within  reasonable 
limits  and  general  usage,  are  within  the  discretion 

6  state  Railroad  Tax  Cases,  92  U.  S.  575 ;  Kentucky  Railroad 
Tax  Cases,  115  U.  S.  321;  Home  Ins.  Co.  V.  New  York,  134  U.  S.  594; 
Giozza  V.  Tiernan,  148  U.  S.  657 ;  Florida  Cent.,  etc.,  R.  Co.  v.  Rey- 
nolds, 183  U.  S.  471.     And  see  supra,  p.  60. 


DUE  PROCESS  OF  LAW  211 


of  the  state  legislature,  or  the  people  of  the  State    ^^Pf^'^ 


in  framing  their  constitution.  But  clear  and  hos-  — 
tile  discriminations  against  particular  persons  and 
classes,  especially  such  as  are  of  an  unusual  charac- 
ter, unknown  to  the  practice  of  our  governments, 
might  be  obnoxious  to  the  constitutional  prohibition. 
It  would,  however,  be  impracticable  and  unwise  to 
attempt  to  lay  down  any  general  rule  or  definition  on 
the  subject,  that  would  include  all  cases.  They  must 
be  decided  as  they  arise.  We  think  that  we  are  safe 
in  saying  that  the  Fourteenth  Amendment  was  not 
intended  to  compel  the  State  to  adopt  an  iron  rule  of 
equal  taxation.  If  that  were  its  proper  construction, 
it  would  not  only  supersede  all  those  constitutional 
provisions  and  laws  of  some  of  the  States,  whose 
object  is  to  secure  equality  of  taxation,  and  which  are 
usually  accompanied  with  qualifications  deemed  ma- 
terial ;  but  it  would  render  nugatory  those  discrimi- 
nations which  the  best  interests  of  society  require; 
which  are  necessary  for  the  encouragement  of  needed 
and  useful  industries,  and  the  discouragement  of  in- 
temperance and  vice ;  and  which  every  State,  in  one 
form  or  another,  deems  it  expedient  to  adopt.  "^^ 
Thus  the  owners  of  property  falling  within  one  class 
may  be  entitled  to  a  review  of  the  assessment  pro- 
ceedings, while  for  those  in  another  class  no  oppor- 
tunity for  rehearing  may  be  provided,  and  yet  this 
does  not  deprive  the  latter  of  due  process  of  law.^ 
And  so  due  process  of  law  is  not  denied  by  a  statute 
which  taxes  surface  street  railways,  while  exempting 

7  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232. 

8  Pittsburgh,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  427 ;  Winona,  etc., 
Land  Co.  v.  Minnesota,  159  U.  S.  526;  Weyerhaueser  v.  Minnesota, 
17    U.  S.  550. 


212 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Power 
delegated 
to  munici- 
palities. 


Taxation 
includes 
special  as- 
sessments. 


underground  street  railways  ^  or  while  taxing  ordi- 
nary railroads  in  the  streets  at  a  different  rate.^ 
Such  differences  are  sufficient  to  justify  a  diversity 
in  the  mode  and  extent  of  taxation.-. 

While  the  power  of  taxation  Belongs  exclusively 
to  the  legislature  and  can  not  be  delegated  by  it  to 
other  departments  of  government  or  to  private  cor- 
porations,^  it  may  be  delegated  to  municipal  corpora- 
tions, which  are  merely  instrumentalities  of  the  State 
for  the  better  administration  of  the  government  in 
matters  of  local  concern,  and  when  such  a  corpora- 
tion is  created  the  power  of  taxation  is  vested  in  it 
as  an  essential  attribute,  for  all  the  purposes  of  its 
existence,  unless  its  exercise  be  in  express  terms 
lorohibited.^  As  the  legislature  may  grant  the  tax- 
ing power  to  municipalities,  it  may  at  its  pleasure 
take  it  away,  and  although  such  a  proceeding  may 
delay  the  creditors  of  the  municipality  in  the  col- 
lection of  their  debts,  it  does  not  deprive  them  of 
property  without  due  process  of  law,  however  much 
the  repeal  of  the  taxing  power  may  conflict  with  the 
provision  of  the  Constitution  against  the  impair- 
ment of  contracts.* 

Upon  the  taxing  power  depends  the  validity  not 
only  of  laws  providing  for  revenue  for  general  or 
local  purposes,  but  also  of  acts  providing  for  local 
or  special  assessments,  in  which  the  cost  of  public 
improvements  is  levied  in  part  or  wholly  on  the  par- 

9  Metropolitan  St.  R.  Co.  v.  Tax  Com'rs,  199  U.  S.  1.  47. 
1  Savannah,  etc.,  R.  Co.  V.  Savannah,  198  U.  S.  392. 
2Rees  V.  Watertown,  19  Wall.    (U.  S.)    107;   Meriwether  v.  Gar- 
rett, 102  U.  S.  472 ;  Allentown  v.  Henry,  73  Pa.  St.  404. 
8  U.  S.  V.  New  Orleans,  98  U.  S.  381. 
4  Louisiana  v.  New  Orleans,  109  U.  S.  289. 


DUE  PROCESS  OF  LAW  213 


ticular  property  benefited,  upon  the  theory  that  he    chapter 

who  receives  the  benefit  should  bear  the  burden,  and  '■ — ■ 

which  therefore  are  not  within  special  constitutional 
requirements  for  uniformity.^ 

When  a  local  tax  is  in  question,  the  right  to  de-  dfstr"«s 
termine  the  limits  of  the  taxing  district  is  involved  in  limit?''' 
the  taxing  power.^  So  in  the  levy  of  a  special  as- 
sessment the  legislature  may,  if  it  see  fit,  determine 
the  lands  from  which  it  is  to  be  collected,  and  this 
determination,  being  in  the  lawful  exercise  of  the 
taxing  power,  does  not  deprive  the  owner  of  a  hear- 
ing on  the  question  of  the  benefit  to  his  land  in  a 
sense  to  work  a  deprivation  of  due  process  of  lawJ 
Speaking  generally,  the  question  of  the  division  of 
a  State  into  political  units  through  which  taxes  are 
assessed  and  collected  is  not  one  with  which  the  fed- 
eral courts  have  any  concern.  ''It  is  for  the  State 
to  determine,"  it  has  been  said,  ''its  political  sub- 
divisions, the  number  and  size  of  its  municipal  cor- 
porations, and  their  territorial  extent.^  These  are 
matters  of  a  local  nature,  in  which  the  nation  as  a 
whole  is  not  interested,  and  in  which,  by  the  very  na- 
ture of  things,  the  determination  of  the  State  authori- 
ties should  be  accepted  as  authoritative  and  controll- 
ing. We  do  not  mean  to  hold  that  in  the  creation 
or  change  of  municipal  boundaries  there  may  not 
be  action  taken  by  the  State  which  involves  a  tres- 

sHagar  v.  Reclamation  Dist.  No.  108,  111  U.  S.  701;  Spencer  v. 
Merchant,  125  U.  S.  345;  Fallbrook  Irrigation  Dist.  v.  Bradley,  164 
U.  S.  112;  Norwood  v.  Baker,  172  U.  S.  269;  Dorgan  v,  Boston,  12 
Allen  (Mass.)  223;  State  v.  Newark,  37  N.  J.  L.  415;  People  V. 
Brooklyn,  4  N.  Y.  419;  Raleigh  v.  Pearce,  110  N.  Car.  32. 

6  Williams  V.  Eggleston,  170  U.  S,  304,  311. 

7  See  infra,  p.  246. 

8  See  Atty.-Gen.  v.  Lowrey,  199  U.  S.  233. 


214  DUE  PROCESS  OF  LAW 

Chapter    pass  upoH  rights  secured  by  the  Federal  Constitu- 

' tioD,  or  that  in  proceedings  looking  to  such  change 

no  questions  can  arise  which  are  of  a  federal  nature, 
and  in  respect  to  which  the  judgment  of  the  courts 
of  the  nation  must  be  controlling.'^  All  that  we 
mean  to  decide  is  that  the  matter  of  the  territorial 
boundaries  of  a  municipal  corporation  is  local  in  its 
nature,  and  as  a  rule  to  be  finally  and  absolutely  de- 
termined by  the  authorities  of  the  State."  ^  These 
observations  were  made  in  a  case  wherein  the  owner 
of  property  which  had  been  annexed  to  a  city  and 
upon  which  an  assessment  had  been  made  for  city 
taxes,  sought  to  restrain  their  collection  in  the  fed- 
eral courts,  after  the  annexation  had  been  declared 
valid  by  the  highest  State  court.  The  United  States 
Supreme  Court,  acting  on  the  ground  indicated,  re- 
fused to  interfere. 

9  See  also  Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  592.  In 
this  case  municipal  taxes  were  levied  upon  a  bridge,  and  the  bridge 
company  claimed  that  parts  of  their  property  were  so  far  beyond 
the  reach  of  municipal  protection  as  to  receive  no  benefit  whatever 
from  the  municipal  government,  so  that  the  levy  of  the  taxes 
amounted  to  taking  private  property  for  public  purposes  without 
compensation  and  constituted  a  deprivation  of  due  process  of  law. 
But  the  court  held  otherwise  in  the  absence  of  evidence  showing  "  so 
clearly  and  palpably  an  illegal  encroachment  upon  private  rights  as 
to  leave  no  doubt  that  such  taxation,  by  its  necessary  operation,  is 
really  spoliation  under  the  guise  of  exerting  the  power  to  tax." 
Every  doubt  was  to  be  resolved  in  favor  of  the  validity  of  the  tax. 
The  State  court  had  ruled  adversely  to  the  claim  presented,  and  the 
Federal  Supreme  Court  could  not  adjudge  that  decision  so  clearly 
erroneous  "  as  to  entitle  the  defendants  to  invoke  the  principle  that 
private  property  cannot  be  taken  for  public  use  without  just  com- 
pensation." 

1  Forsyth  v.  Hammond,  166  U.  S.  519,  citing  Kelly  v.  Pittsburgh, 
104  U.  S.  78. 


DUE  PROCESS  or  LAW  215 

Chnpter 
LIMITATIONS   ON    THE   TAXING   POWER.  ^^^^- 


As  extensive  as  is  the  power  to  tax,  its  exercise  is  J^eory^if 
subject  to  well-established  limitations.  Special  re-  ""'""'•°"^- 
straints  in  the  Constitution  upon  the  taxing  power 
must,  of  course,  be  observed ;  but  besides  these  there 
are  other  and  more  general  limitations  arising  from 
the  nature  of  our  government  and  from  fundamental 
principles  of  justice,  embodied  in  the  conception  of 
''due  process  of  law."  So  long  as  the  legislature 
acts  within  these  limitations  on  its  powers,  its  dis- 
cretion in  determining  the  subjects  and  modes  of 
taxation  is  unlimited,  and  however  oppressive  or 
unjust  the  exercise  of  the  taxing  power  may  prove, 
the  courts,  under  the  theory  of  the  separation  of 
governmental  powers  upon  which  all  our  constitu- 
tions rest,  can  not  interfere.  Each  branch  of  the 
government  is  responsible  ultimately  to  the  people 
for  the  abuse  of  the  powers  committed  to  it,  and  it 
would  serve  no  good  purpose  to  substitute  for  the 
fallible  judgment  of  that  department  to  which  the 
duty  of  devising  and  laying  taxes  is  intrusted,  the 
equally  fallible  judgment  of  the  judiciary,  to  whom 
taxation  does  not  belong.^ 

It  has  been  argued  that  there  is  a  limitation  to  Selection 

of  subjects 

the  power  of  the  legislature  to  select  the  subjects  of  crrmma"^''' 
taxation,  and  upon  the  extent  of  the  tax  imposed,  dom'o?^^' 
implied  in  the  due  process  clauses  of  the  Fifth  and 
Fourteenth  Amendments ;  that  when  the  operation  of 
the  tax  upon  a  given  subject  selected  is  to  create  an 

2  See  State  Railroad  Tax  Cases,  92  U.  S.  612;  Kirtland  v.  Hotch- 
kiss,  100  U.  S.  491;  Mobile  County  v.  Kimball,  102  U.  S.  691;  Ken- 
tucky Railroad  Tax  Cases,  115  U.  S.  335. 


216  DUE  PEOCESS  OF  LAW 

Chapter    arbitrary  discrimination  between  the  subject  so  taxed 

and  the  subjects  not  taxed  or  taxed  at  a  different 

rate,  there  is  a  failure  of  the  generality  of  the  law 
implied  in  due  process;  and  that  when  the  opera- 
tion and  effect  of  taxation  at  the  rate  prescribed  is 
necessarily  to  destroy  the  manufacture  of,  or  traffic 
in,  the  article  taxed,  or  to  suj^press  the  business  se- 
lected for  taxation,  such  manufacture,  traffic,  or  busi- 
ness being  harmless  or  beneficial  to  the  public,  the 
freedom  of  every  man  to  contract  and  to  engage  in 
lawful  pursuits  is  taken  away  and  he  is  deprived  of 
property  without  due  process  of  law.  In  either  of 
these  cases,  it  is  said,  the  legislative  act  is  not  a 
valid  exercise  of  the  taxing  power,  but  a  deprivation 
of  fundamental  rights  which  even  the  taxing  power 
must  respect.  But  it  has  been  held  that  when,  as 
in  the  case  of  the  national  government,  the  power 
to  tax  within  the  sphere  committed  to  it  is  limited 
only  by  specific  provisions  of  the  Constitution,  if  the 
tax  is  one  which  Congress  has  power  to  lay,  the  right 
to  select  the  subjects  of  taxation  is  unlimited,  and 
that  the  selection  is  due  process  of  law  and  not  open 
to  the  objection  of  unjust  discrimination.  A  State's 
power  to  tax,  so  far  as  the  selection  of  the  subjects 
taxed  is  concerned,  is  limited,  from  the  point  of  view 
of  the  Federal  Constitution,  only  by  the  effect  which 
may  be  had  on  the  powers  of  the  national  govern- 
ment by  the  tax,  and  to  this  extent  only  is  the  opera- 
tion of  the  selection  a  proper  subject  of  judicial  in- 
quiry. If  it  be  conceded  that  the  State  must  respect 
in  all  laws  the  right  of  property  and  the  liberty  to 
contract,  the  tax  is  not  unconstitutional  by  reason  of 
its  extent,  unless  its  imposition  reaches  the  point  of 


DUE  PROCESS  OF  LAW  217 


the  abuse  of  a  legislative  power  and  constitutes  the    ^^Pf^'^ 


exercise  of  an  authority  of  which  the  legislature  is 
not  jDOssessed.  This  never  happens  where  the  busi- 
ness taxed  is  one  which  the  State  in  the  exercise  of 
its  police  or  legislative  power  has  the  right  to  restrict 
orjg;.'ohibit.^ 

[Among  the  limitations  arising  from  our  dual  sys- 
tem of  government  is  the  principle  that  neither  the 
federal  nor  the  State  government  may  tax  the  agen- 
cies, operations,  or  property  of  the  other,'*  [and  that, 
the  regulation  of  interstate  commerce  being  vested 
solely  in  the  federal  government,  the  exercise  of  that 
power  can  not  be  interfered  with  by  a  State  by  the 
imposition  of  a  tax  upon  the  privilege  of  transact- 
ing such  commerce,  though  the  instrumentalities  of 
interstate  commerce,  if  within  a  State,  may  be  the 
subject  of  taxation.^  Supported  by  the  fundamental 
principles  of  justice  and  of  due  process  of  law,  as 
applicable  under  our  complex  system  of  government 
are  the  restrictions  that  the  State  can  tax  only  those 
persons  or  things  which  lie  within  its  jurisdiction; 
that  the  power  to  tax  can  be  exercised  only  for  a 
public  purpose,  and  not  in  order  to  enrich  one  per- 

s  MeCray  v.  U.  S.,  195  U.  S.  27. 

*M'Culloch  V.  Maryland,  4  Wheat.  (U.  S.)  316;  Weston  v. 
Charleston,  2  Pet.  (U.  S.)  466;  Collector  v.  Day,  11  Wall.  (U.  S.) 
113;  Ward  v.  Maryland,  12  Wall.  (U.  S.)  418;  U.  S.  v.  Baltimore, 
etc.,  R.  Co.,  17  Wall.  (U.  S.)  322;  Van  Brocklin  v.  Tennessee,  117 
U.  S.  151;  Wisconsin  Cent.  R.  Co.  v.  Price  County,  133  U.  S.  496; 
-bollock  V.  Farmers'  Loan,  etc.,  Co.,  157  U.  S.  429;  U.  S.  v.  Rickert, 
188  U.  S.  438,  439. 

BLeloup  V.  Port  of  Mobile,  127  U.  S.  640,  648;  Pullman's  Palace 
Car  Co.  1-.  Pennsylvania,  141  U.  S.  18;  Adams  Express  Co.  v.  Ohio 
State  Auditor,  165  U.  S.  194,  166  U.  S.  185;  Atlantic,  etc.,  Tel.  Co. 
V.  Philadelphia,  190  U.  S.  160;  Allen  v.  Pullman's  Palace  Car  Co., 
191  U.  S.  171;  Kehrer  v.  Stewart,  197  U.  S.  60. 


Limita- 
tions enu- 
merated. 


218 


DUE  PROCESS  OF  LAW 


When  ac- 
tual situs 
governs. 


Chapter    gon  or  class  of  persons  at  the  expense  of  another; 

—  and  generally  that  the  processes  of  the  assessment 

and  collection  of  taxes  can  proceed  validly  only  upon 
notice  and  hearing  or  an  opportunity  to  be  heard. 

Property  Taxed  Must  Be  Within  Jurisdiction. 

The  principles  of  public  law  lunit  the  power  of  a 
State  in  imposing  taxes,  whatever  be  the  form  which 
the  tax  may  assume,  to  persons,  property,  and  busi- 
ness within  the  jurisdiction  of  the  State ;  and  a  dis- 
regard of  this  rule  is  a  denial  of  due  process  of  law 
to  the  owners  of  property  on  which  a  tax  is  levied 
and  which  is  not  within  the  jurisdiction.^ 

AVhen  a  tax  is  levied  on  real  property  or  on  tan- 
gible personal  property,  the  actual  situs  determines 
its  taxability  without  regard  to  the  owner's  domi- 
cil.''  Incorporeal  rights  issuing  out  of  lands  in  one 
State  are  taxable  therein  and  not  in  any  other  State. 
Thus,  when  a  ferry  was  operated  across  the  Ohio 
River  between  points  one  of  which  was  in  Indiana 

c  Dewey  r.  Des  Moines,  173  U.  S.  193;  Loius\nlle.  etc..  Ferry  Co.  v. 
Kentucky,  188  U.  S.  38.5;  Delaware,  etc.,  R.  Co.  v.  Pennsylvania,  198 
U.  S.  341;  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S. 
194. 

7  See  siipra,  p.  118.  An  exception  to  the  rule  that  tangible  per- 
sonal property  is  taxable  at  its  actual  sitvis,  exists  in  the  case  of 
ships  or  vessels  registered  under  the  laws  of  the  United  States  at  a 
particular  port  and  engaged  in  interstate  commerce  upon  waters 
which  are  a  common  highway.  Such  vessels  are  not  taxable  in 
another  State,  although  they  may  touch  at  ports  therein  to  deliver 
and  receive  passengers  or  freight.  "  But  this  is  because  they  are 
not,  in  any  proper  sense,  abiding  within  its  limits,  and  have  no 
continuous  presence  or  actual  situs  within  its  jurisdiction,  and, 
therefore,  can  be  taxed  only  at  their  legal  situs  ^  their  home  port 
and  the  domicil  6f  their  owners."  Pullman's  Palace  Car  Co.  V. 
Pennsylvania,  141  U.  S.  18.  And  see  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.   196. 


DUE  PROCESS  OF  LAW  219 

and  the  other  in  Kentucky,  under  separate  fran-    chapter 

chises  from  the  legislatures  of  two  States,  it  was  '— 

held  that  a  tax  imposed  by  the  State  of  Kentucky 
and  levied  on  a  valuation  which  included  the  Indiana 
franchise  was  a  deprivation  of  property  without  due 
process  of  law.«  The  two  franchises  were  separate  • 
and  distinct,  and,  said  the  court,  "each  franchise  is 
property  entitled  to  the  protection  of  the  law.  .  .  , 
While  the  mode,  form,  and  extent  of  taxation  are, 
speaking  generally,  limited  only  by  the  wisdom  of 
the  legislature,  that  power  is  limited  by  a  principle 
Inhering  in  the  very  nature  of  constitutional  gov- 
ernment, namely,  that  the  taxation  imposed  must 
have  relation  to  a  subject  within  the  jurisdiction  of 
the  taxing  government.  ...  No  difficulty  can 
exist  in  applying  the  general  rule  in  this  case;  for 
beyond  all  question  the  ferry  franchise  derived  from 
Indiana  is  an  incorporeal  hereditament  derived  from 
and  having  its  legal  situs  in  that  State.  It  is  not 
within  the  jurisdiction  of  Kentucky."  The  at- 
tempted taxation  by  Kentucky  of  the  company's 
Indiana  franchise  was,  therefore,  a  violation  of  the 
due  process  clause  of  the  Fourteenth  Amendment; 
*'as  much  so  as  if  the  State  taxed  the  real  estate 
owned  by  that  company  in  Indiana."  ^ 

Real  estate  under  mortgage  may  be  taxed  by  the  ^^t 
State  at  its  full  value.     The  State  "may  do  this  '""'•^g^sie. 
either  by  taxing  the  whole  to  the  mortgagor,  or  by 

8  Louisville,  etc.,  Ferry  Co.  v.  Kentucky,   188  U.  S.  .38.5. 

9  Louisville,  etc..  Ferry  Co.  v.  Kentucky,  188  U.  S.  390,  398.  See 
also  Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  1,50,  holding  that 
a  franchise  to  build  a  bridge  over  a  river  flowing  between  two  States 
was  a  proper  subject  of  taxation  by  the  State  which  granted  the 
franchise. 


220  DUE  PROCESS  OF  LAW 


ci^pter    taxing  to  the  mortgagee  the  interest  therein  repre- 


sented by  the  mortgage,  and  to  the  mortgagor  the 
remaining  interest  in  the  land."  When  the  interest 
of  the  mortgagee  is  taxed  separately  there  is  no  de- 
privation of  property  without  due  process  of  law, 
although  the  mortgagee  may  be  a  nonresident  of 
the  State.  A  mortgage  is  an  interest  in  land,  de- 
pendent for  protection  on  local  laws  and  liable  to 
taxation  within  the  State.^ 
Movement  Tangible  personal  property  within  a  State  and 

personalty,  gubject  to  its  jurisdictiou  remains  liable  to  State 
taxation  until  it  passes  out  of  the  jurisdiction  of  the 
State  and  becomes  subject  to  federal  regulation  as 
an  export  or  as  having  actually  entered  into  com- 
merce between  the  States.  ''Goods,"  said  the 
United  States  Supreme  Court,  "do  not  cease  to  be 
part  of  the  general  mass  of  property  in  the  State, 
subject  as  such  to  its  jurisdiction  and  to  taxation  in 
the  usual  way,^  until  they  have  been  shipped,  or  en- 
tered with  a  common  carrier  for  transportation  to 
another  State,  or  have  been  started  upon  such  trans- 
portation in  a  continuous  route  or  journey."^ 
When  property  thus  shipped  reaches  its  des- 
tination in  another  State,  it  at  once  becomes  inter- 
mingled with  the  general  mass  of  property  there  and 
subject  to  taxation.^  Nor,  while  in  transit,  can  it 
be  taxed  by  the  States  through  which  it  passes. 

1  Savings,  etc.,  Soc.  v.  Multnomah  County,  169  U.  S.  421. 

2  See  Brown  V.  Maryland,  12  Wheat.  (U.  S.)  419;  Welton  v. 
Missouri,  91  U.  S.  27.5. 

3Coe  I'.  Errol,  116  U.  S.  517. 

4  Brown  v.  Houston,  114  U.  S.  622;  Pittsburg,  etc.,  Coal  Co.  v. 
Bates,  156  U.  S.  577.  See  American  Refrigerator  Transit  Co.  i\  Hall, 
174  U.  S.  70. 


DUE  PROCESS  OF  LAW  221 


As  was  said  in  a  recent  case,  *' while  the  property  is    Chapter 


Situs  of 


at  rest  for  an  indefinite  time  awaiting  transporta- 
tion, or  awaiting  a  sale  at  its  place  of  destination, 
or  at  an  intermediate  point,  it  is  subject  to  taxation. 
But  if  it  be  actually  in  transit  to  another  State,  it 
becomes  the  subject  of  interstate  commerce,  and  is 
exempt  from  local  assessment.'"^  Applying  these 
principles,  it  has  been  held  that  an  attempt  on  the 
part  of  the  State  of  the  origin  of  chattels  to  tax 
their  iDroducer  on  a  valuation  which  includes  the 
value  of  chattels  already  shipped  beyond  the  State 
is  void  as  a  deprivation  of  property  without  due 
process  of  law.® 

The  general  principles  regulating  the  situs  of  fritang^ibk 
personal  property  have  already  been  stated,  and  we 
have  seen  that  situs  for  purposes  of  taxation  is, 
when  the  tax  is  levied  on  intangible  personal  prop- 
erty, largely  a  question  for  the  determination  of  the 
State,  acting  through  its  legislature  and,  in  the  exer- 
cise of  the  discretion  with  which  the  legislative  de- 
partment is  vested,  determining  the  policy  and  wis- 
dom of  particular  taxes.'^  A  debt  evidenced  by  note 
or  bond,  and  secured  by  a  mortgage  on  lands,  may 
be  taxed  at  the  domicil  of  the  creditor,  without  re- 
gard to  the  fact  that  the  lands  mortgf^ged  as  secu- 
rity lie  in  another  State.^  Debts  may  even  acquire 
a  situs  for  purposes  of  taxation  by  the  presence  of 

5  Kelley  r.  Rhoads,  188  U.  S.  1,  7 ;  Diamond  Match  Co.  v.  Onton- 
agon. 188  U.  S.  82,  9.5,  96. 

6  Delaware,  etc.,  R.  Co.  v.  Pennsylvania,  198  U.  S.  341. 
"  See  supra,  p.  118. 

8  Kirtland  v.  Hotchkiss,   100  U.  S.  491. 


222  DUE  PROCESS  OF  LAW 

Chapter    the  evidences  thereof  in  a  State  in  the  possession  of 

'—  an  agent  for  the  real  owner.^ 

fax«!*^''°  In  the  case  of  succession,  inheritance,  and  legacy 
taxes,  the  thing  taxed  is  not  the  property  constitut- 
ing the  estate,  but  its  transfer  or  passage  by  will, 
descent,  or  succession  from  the  dead  to  the  living.^ 
According  to  the  fiction,  mobilia  sequuntur  per- 
sonam, private  international  law  recognizes  the 
transmission  of  personal  property  as  taking  jDlace 
at  the  domicil  of  the  deceased  owner,  though  the 
property  may  in  fact  be  elsewhere.^  But  this  is  a 
rule  of  comity  only,  and  no  principle  of  constitu- 
tional law  is  infringed  by  the  taxation  in  one  State 
of  debts  due  by  its  citizens  to  the  estate  of  a  non- 
resident decedent.  ''Power  over  the  person  of  the 
debtor  confers  jurisdiction."  =^  "The  right  to  take 
property  by  devise  or  descent  is  the  creature  of  the 
law,  and  not  a  natural  right  —  a  privilege  —  and 
therefore  the  authority  which  confers  it  may  im- 
pose conditions  upon  it.  From  these  principles  it 
is  deduced  that  the  States  may  tax  the  privilege, 
discriminate  between  relatives,  and  between  these 
and  strangers,  and  grant  exemptions,  and  are  not 
precluded  from  this  power  by  the  provisions  of  the 
respective  State  constitutions  requiring  uniformity 
and  equality  of  taxation."  ^ 

oNcw  Orleans  V.  Stempel,  175  U.  S.  309;  Bristol  v.  Washington 
County,  177  U.  S.  133;  Assessors  v.  Comptoir  National  d'Escompt«, 
191  U.  S.  388. 

lU.  S.  V.  Perkins,  163  U.  S.  625;  Magoun  v.  Illinois  Trust,  etc.. 
Bank,  170  U.  S.  283;  Knowlton  v.  Moore,  178  U.  S.  41;  Orr  v.  Gil- 
man,  183  U.  S.  278. 

2  Eidman  r.  Martinez,  184  U.  S.  578. 

8  Blaokstone  v.  Miller,  188  U.  S.  189. 

4  Magoun  v.  Illinois  Trust,  etc.,  Bank,  170  U.  S.  283. 


DUE  PROCESS  OF  LAW  223 

The  power  of  one  State  or  the  nation  to  tax  prop-    Chapter 

erty  within  its  limits  is  not  affected  by  the  fact  that  

the  same  property  is  the  subject  of  taxation  by  an-  taxation. 
other  sovereignty.  "Under  our  constitutional  sys- 
tem, both  the  national  and  the  State  governments, 
moving  in  their  respective  orbits,  have  a  common 
authority  to  tax  many  and  diverse  objects,  but  this 
does  not  cause  the  exercise  of  its  lawful  attributes 
by  one  to  be  a  curtailment  of  the  powers  of  govern- 
ment of  the  other ;  for,  if  it  did,  there  would  practi- 
cally be  an  end  of  the  dual  system  of  government 
which  the  Constitution  established."^  "No  doubt 
this  power  on  the  part  of  two  States  to  tax  on  dif- 
ferent and  more  or  less  inconsistent  principles  leads 
to  some  hardship.  It  may  be  regretted,  also,  that 
one  and  the  same  State  should  be  seen  taxing  on  the 
one  hand  according  to  the  fact  of  power,  and  on  the 
other,  at  the  same  time,  according  to  the  fiction 
that  .  .  .  mohilia  sequuntur  personam.  .  .  .  But 
these  inconsistencies  infringe  no  rule  of  constitu- 
tional law."® 

Assessment  of  Property  Lying  Partly  in  Several 
Jurisdictions. 

When  a  corporation  has  property  in  more  than  corporate 
one  State,  and  each  State  may  tax  a  portion,  the  rule 
of  valuation  applied  must  exclude  the  property  lying 
beyond  the  State.    In  taxing  corporations  there  are 

BKnowlton  v.  Moore,  178  U.  S.  41.  And  see  South  Carolina  v. 
U.  S.,  199  U.  S.  437. 

eBlackstone  v.  Miller,  188  U.  S.  189,  204,  citing  Coe  v.  Errol,  116 
U.  S.  517;  Knowlton  i\  Moore,  178  U.  S.  41.  And  see  Kidd  v.  Ala- 
bama, 188  U.  S.  730,  732. 


224 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Rule  ap- 
plied must 
not  include 
property 
without 
State. 


at  least  four  elements  of  taxable  value :  "^  franchises ; 
capital  stock  in  the  hands  of  the  corporation;  cor- 
porate property;  and  shares  of  the  capital  stock  in 
the  hands  of  the  individual  stockholders.  So  far  as 
the  property  is  within  its  own  borders,  the  State 
may  assess  taxes  upon  these  various  elements  in 
such  a  way  as  to  subject  the  corporation  or  the 
stockholders  to  double  taxation,  without  violating 
the  Federal  Constitution.  A  tax  on  the  capital  stock 
or  total  assets  of  a  corporation  is  a  tax  on  the  prop- 
erty in  which  the  capital  is  invested,  and  therefore 
when  the  property  is  in  several  States,  such  a  tax 
may  infringe  the  principle  under  consideration.^ 

When  the  method  of  assessing  such  a  tax  pro- 
vides an  equitable  means  of  determining  the  propor- 
tion of  the  property  within  the  State  and  therefore 
subject  to  taxation,  to  that  without  the  State,  the  tax 
is  valid.  In  the  case  of  a  railroad,  an  assessment 
which  values  the  property  to  be  taxed  (tangible  prop- 
erty, capital  stock  and  franchises),  in  proportion  to 
the  ratio  which  the  mileage  within  the  State  bears 
to  the  total  mileage,  has  been  held  equitable.^  The 
same  method  has  been  sustained  of  assessing  the 
taxable  value  of  the  property  of  telegraph  compa- 
nies,^ the  rolling  stock  of  railroads,  and  the  assets  of 

7  Tennessee  v.  Whitworth,  117  U.  S.  129,  13G;  New  Orleans  v. 
Houston,  119  U.  S.  265. 

8  Western  Union  Tel.  Co.  v.  Atty.-Gen.,  125  U.  S.  530;  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  Fargo  v.  Hart,  193 
U.  S.  490;  Delaware,  etc.,  R.  Co.  v.  Pennsylvania,  198  U.  S.  341. 

9  Delaware  Railroad  Tax,  18  Wall.  (U.  S.)  200;  Erie  R.  Co.  V. 
Pennsylvania.  21  Wall.  (U.  S.)  492;  State  Railroad  Tax  Cases.  92 
U.  S.  575;  Pittsburgh,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  421;  Cleve- 
land, etc.,  R.  Co.  V.  Backus,  154  U.  S.  439. 

1  Western  Union  Tel.  Co.  v.  Atty.-Gen.,  125  U.  S.  5.30;  Massachu- 
setts V.  Western  Union  Tel.  Co.,  141  U.  S.  40;  Western  Union  Tel. 


DUE  PROCESS  OF  LAW  225 

sleeping  car  companies  ^  and  express  companies,  al-    Chapter 

though  the  property  in  some  of  these  cases  is  intan-  ■ '■ — 

gible.^  When,  however,  it  appears  that  the  mileage 
rule  will  not  give  a  just  result,  as  when  in  the  case 
of  a  railroad  the  company  owns  terminals  in  one 
State  whose  value  more  than  equals  all  the  line  in 
another  State,  or  when,  in  the  case  of  an  express 
comj^any,  a  State  undertakes  to  add  to  the  value  of 
the  capital  stock  for  division  according  to  mileage 
large  sums  of  personalty  in  another  State  on  the 
theory  that  the  accumulation  imparts  credit  in  the 
taxing  State,  the  rule  is  not  applicable.  Such  a 
case  would  amount  to  taxing  property  without  the 
State  on  a  pretext.^ 

When  specific  articles  of  personal  property  with-  ff^"^^ 
in  a  State  belonging  to  a  corporation,  for  instance  coSntiy 
the  refrigerator  cars  used  by  a  company  engaged  ^  '  ''°^" 
in   transporting  perishable   things,   are   constantly 
changing,    the    tax    upon    such    property    may   be 
fixed  by  an  appraisement  and  valuation  of  the  aver- 
age amount  of  the  property  thus  habitually  used  and 
employed.^ 

Co.  V.  Taggart,  163  U.  S.  1;  Western  Union  Tel.  Co.  v.  Missouri, 
190  U.  S.  412. 

2Marye  v.  Baltimore,  etc.,  R.  Co.,  127  U.  S.  117;  Pullman's 
Palace  Car  Co.  i\  Pennsylvania,  141  U.   S.   18. 

3  Adams  Express  Co.  v.  Ohio  State  Auditor,  16.5  U.  S.  194,  166 
U.  S.  185;  American  Express  Co.  i\  Indiana,  165  U.  S.  255;  Adams 
Express  Co.  V.  Kentucky,  166  U.  S.  171. 

4  Pittsburgh,  etc.,  R.  Co.  i'.  Backus,  154  U.  S.  421,  431;  Western 
Union  Tel.  Co.  v.  Taggart,  163  U.  S.  1,  23 ;  Fargo  v.  Hart,  193  U.  S. 
490,  500. 

5  American  Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70,  82. 


15 


Chapter 
VII. 


226  I>UE  PROCESS  OF  LAW 


Exemptions  from  Taxation. 


Exemp-  The  subjects  upon  which  taxes  may  be  levied  may 

construed.  ^^^^  ^®  limited  by  the  action  of  the  State  itself  by 
granting  an  exemption  from  taxation  under  such 
circumstances  as  to  bring  the  exemption  within  the 
protection  from  impairing  the  obligation  of  con- 
tracts. But  exemptions  from  taxation,  being  in 
derogation  of  the  sovereign  power  of  the  State,  are 
never  to  be  presumed,  and  when  they  exist,  are  to  be 
construed  most  strictly.*^  ' '  The  payment  of  taxes  on 
account  of  property  otherwise  liable  to  taxation  can 
only  be  avoided  by  clear  proof  of  a  valid  contract  of 
exemption  from  such  payment,  and  the  validity  of 
such  contract  presupposes  a  good  consideration 
therefor.  If  the  property  be  in  its  nature  taxable, 
the  contract  exempting  it  from  taxation  must,  as  we 
have  said,  be  clearly  proved.  It  will  not  be  inferred 
from  facts  which  do  not  lead  irresistibly  and  neces- 
sarily to  the  existence  of  the  contract.  The  facts 
proved  must  show  either  a  contract  expressed  in 
terms,  or  else  it  must  be  implied  from  facts  which 
leave  no  room  for  doubt  that  such  was  the  intention 
of  the  parties  and  that  a  valid  consideration  existed 
for  the  contract.  If  there  be  any  doubt  on  these  mat- 
ters the  contract  has  not  been  proven  and  the  exemp- 
tion does  not  exist."  "^ 

« Providence  Bank  v.  Billinjifs,  4  Pet.  (U.  S.)  514,  the  leading 
case  on  this  topic;  Philadelphia,  etc.,  R.  Co.  v.  Maryland,  10  How. 
(U.  S.)  .376;  Piqua  Branch  of  State  Bank  v.  Knoop,  16  How.  (U.  S.) 
369;  Farrin,2:ton  V.  Tennesi=iee,  95  U.  S.  679;  Vickshurg,  etc..  R.  Co. 
V.  Dennis,  116  U.  S.  665;  New  Orleans  City,  etc.,  R.  Co.  v.  New  Or- 
leans, 143  U.  S.   192. 

7  Wells  V.  Savannah,  181  U.  S.  5.31,  5.39. 

The  decisions  of  State  courts,  while  not  of  paramount  authority, 


tax  law. 


DUE  PROCESS  OF  LAW  227 

This  rule  has  been  applied  to  the  State's  right  to    Chapter 

tax  the  franchises  of  public  service  corporations,  '— 

whch  were  operating  street  railways  and  which  had  SncSe"" 
already  either  paid  for  the  privilege  of  occupying 
the  streets  a  lump  sum,  or  were  paying  annually 
therefor  specific  amounts  or  a  fixed  percentage  of 
receipts.  A  subsequent  tax  by  the  State  on  the  fran- 
chises of  these  corporations,  although  the  taxing 
statute  made  provision  for  the  deduction  from  the 
tax  levied  of  the  sums  being  paid  by  the  corporations 
for  the  use  of  the  streets,  was  attacked  as  impairing 
the  obligation  of  contracts  and  as  a  denial  of  due 
process  of  law.  The  Federal  Supreme  Court  sus- 
tained the  validity  of  the  tax,  holding  that,  under 
the  recognized  rule  for  the  construction  of  exemp- 
tions, the  sums  which  were  being  paid  for  the  use 
of  the  streets  by  the  corporations  were  not  to  be 
considered  as  releasing  or  exempting  the  corpora- 
tions from  payment  of  taxes.  Such  a  sum,  whether 
paid  once  for  all  or  in  the  form  of  annual  exac- 
tion, was  only  the  consideration  for  the  grant  itself 
of  the  franchise,  and  had  no  effect  in  exempting 
from  taxation  the  intangible  property  granted.^  To 
the  specific  contention  that  there  was  discrimination 
amounting  to  a  denial  of  due  process  of  law  against 
those  corporations  which  had  paid  a  lump  sum  once 
for  all  for  the  use  of  the  streets,  in  that  the  law 
made  no  provision  in  their  favor,  while  providing 

are  entitled  to  special  respect  upon  the  construction  of  such  grants. 
Wilson  V.  Standefer,  184  U.  S.  399;  Chicago  Theological  Seminary 
V.  Illinois,  188  U.  S.  662. 

8  Metropolitan  St.  R.  Co.  V.  Tax  Com'rs,  199  U.  S.  1;  Brooklyn 
City  R.  Co.  V.  Tax  Com'rs,  199  U.  S.  48 ;  Twenty-third  St.  R.  Co.  V. 
Tax  Com'rs,  199  U.  S.  53. 


228 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Public 
purpose  in 
taxation 
and  in 
eminent 
•domain. 


for  a  deduction  from  the  tax  levied  to  the  amount  of 
the  annual  i^ayments  of  other  corporations,  the  court 
said:  "The  lump  sum  is  so  obviously  a  payment 
for  the  franchise  that  it  can  not  be  considered  in  any 
just  sense  as  possessing  the  nature  of  a  tax.  It  is 
not  even  rental.  It  is  like  money  paid  for  a  tract 
of  land  —  part  of  the  purchase  price.  "^ 

The  Public  Purpose  of  the  Tax. 

It  is  fundamental  in  the  nature  of  constitutional 
government  that  its  powers  must  be  exerted  solely 
for  the  public  use  and  service.  Only  to  this  extent 
are  the  rights  of  individuals  subordinate  to  the 
state,  and  when  the  state  oversteps  this  limitation 
and  without  regard  to  benefits  to  the  public  levies  a 
contribution,  under  the  form  of  a  tax,  upon  the  prop- 
erty of  one  person  for  the  use  of  another  person  or 
class,  it  commits  an  act  of  confiscation  and  deprives 
the  individual  upon  whom  the  contribution  is  levied 
of  his  property  without  due  process  of  law.^ 

Every  lawful  tax  must,  then,  be  imposed  for  a 
public  purpose.^  In  determining  the  public  charac- 
ter of  the  tax,  a  distinction  has  been  drawn  between 
a  public  purpose  within  the  power  of  eminent  domain 
and  a  public  purpose  within  the  taxing  power.  The 
Supreme  Court  of  Michigan,  speaking  through  Mr. 
Justice  Cooley,  after  stating  that  all  governmental 

» Metropolitan  St.  Ey.  Co.  v.  Tax  Com'rs,  199  U.  S.  16. 

1  Lowell  V.  Boston,  111  Mass.  4.54,  1.5  Am.  Rep.  39.  See  also 
Fallbrock  Irrigation  Dist.  V.  Bradley.  164  U.  S.  112,  161. 

2  Citizens'  Sav.,  etc.,  Assoc.  V.  Topeka,  20  Wall.  (U.  S.)  6.55.  is 
the  leading  case  in  the  United  States  Supreme  Court  on  this  thor- 
oughly settled  proposition.  See  also  Kelly  v.  Pittsburgh.  104  U.  S. 
78;  Cole  1-.  La  Grange,  113  U.  S.  1,  and  27  Am.  and  Eng.  Encyc.  of 
Law  (2d  ed.)   624. 


DUE  PROCESS  OF  L.\W  229 


powers  exist  for  public  pui'poses,  but  are  not  neces-    Chapter 
sarily  to  be  exercised  under  the  same  conditions  of  '— 


public  interest,  called  attention  to  the  aspects  of 
public  interest  which  must  control  in  eminent  do- 
main and  in  the  taxing  power.  ''The  most  impor- 
tant consideration  in  the  case  of  eminent  domain  is 
the  necessity  of  accomplishing  some  public  good 
which  is  otherwise  impracticable ;  and  we  shall  also 
find  that  the  law  does  not  so  much  regard  the  means 
as  the  need.  The  power  is  much  nearer  akin  to  that 
of  the  public  police  than  to  that  of  taxation. ' '  With 
regard  to  taxation,  on  the  other  hand,  the  criterion 
is  not  the  urgency  of  the  public  need,  but  "public 
purpose"  is  used  to  distinguish  the  objects  for 
which,  according  to  settled  usage,  the  government  is 
to  i^rovide  from  those  which,  by  like  usage,  are  left 
to  private  interest  or  enterprise.^  Courts  have  usu- 
ally assumed  or  declared,  however,  that  the  same 
conditions  which  make  a  public  purpose  in  the  exer- 
cise of  one  of  these  sovereign  powers  will  make  the 
purpose  public  for  the  other.^ 

The  power  to  decide  what  is  and  what  is  not  such  P^wic 

•"■  purpose  a 

a  public  use  as  will  justify  the  employment  of  the  ?o"eSia- 
power  of  taxation  rests  primarily  with  the  legisla-  marify?" 
ture,  and  the  courts  should  interfere  only  when  the 
legislature  has  plainly  overstepped  its  power.^  "It 
is  undoubtedly  the  duty  of  the  legislature,"  said  the 
Federal  Supreme  Court,  "which  imposes  or  author- 
izes municipalities  to  impose  a  tax  to  see  that  it  is  not 

3  People  V.  Salem,  20  Mich.  452. 

*  Lowell  r.  Boston,  111  Mass.  454.  And  see  Fallbrook  Irrigation 
Dist.  V.  Bradley,  164  U.  S.  112. 

5  See  itifra,  p.  255,  the  discussion  of  the  analogous  point  in  re- 
spect to  eminent  domain. 


230 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Federal 
courts  not 
bound  by 
State  de- 
cisions. 


Legisla- 
ture may 
impose 
general  or 
local  taxa- 
tion; 


to  be  used  for  purposes  of  private  interest  instead 
of  a  public  use,  and  the  courts  can  only  be  justified 
in  interposing  wlien  a  violation  of  this  principle  is 
clear  and  the  reason  for  interference  cogent.  And 
in  deciding  whether,  in  the  given  case,  the  object  for 
which  the  taxes  are  assessed  falls  upon  the  one  side 
or  the  other  of  this  line,  they  must  be  governed 
mainly  by  the  course  and  usage  of  the  government, 
the  objects  for  which  taxes  have  been  customarily 
and  by  long  course  of  legislation  levied,  what  ob- 
jects or  purposes  have  been  considered  necessary 
to  the  support  and  for  the  proper  use  of  the  govern- 
ment, whether  State  or  municipal.  AVhatever  law- 
fully pertains  to  this,  and  is  sanctioned  by  time  and 
the  acquiescence  of  the  people,  may  well  be  held  to 
belong  to  the  public  use  and  proper  for  the  main- 
tenance of  good  government,  though  this  may  not 
be  the  only  criterion  of  rightful  taxation. ' '  ^ 

What  is  or  what  is  not  a  public  use  is  a  question 
of  general  jurisprudence  which  the  federal  courts 
will  determine  for  themselves.'^ 

Provided  the  object  is  a  public  one,  it  rests  in 
the  discretion  of  the  legislature  to  defray  the  ex- 
penses either  by  general  or  local  taxation.^  Wlien, 
under  an  act  of  the  legislature  for  an  improvement 
in  one  county,  which  was  of  benefit  to  the  whole 
State,  the  legislature  directed  the  expense  to  be  met 

"Citizens'  Sav.,  etc.,  Assoc,  v.  Topeka,  20  Wall.  (U.  S.)  6.55.  See 
Perry  v.  Keene,  56  N.  H.  514;  State  V.  Nelson  County,  1  N.  Dak.  88. 

TFallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112. 

8  Assessments  for  a  portion  of  the  costs  and  expenses  incident  to 
the  location  and  maintenance  of  a  park  in  the  District  of  Columbia, 
dedicated  to  "  the  l)enefit  and  enjoyment  of  the  people  of  the  United 
States,"  may  be  levied  upon  the  owners  of  neighboring  lands.  Wil- 
son V.  Lambert,  168  U.  S.  611. 


DUE  PROCESS  OF  LAW  231 

by  that  county  by  an  issue  of  bonds,  the  act  was    ^^^f*" 

held  an  exercise  of  the  power  of  taxation  and  the  

court  said:  ''When  any  public  work  is  authorized, 
it  rests  with  the  legislature,  unless  restrained  by  con- 
stitutional provisions,  to  determine  in  what  manner 
the  means  to  defray  its  cost  shall  be  raised.  It  may 
apportion  the  burden  ratably  among  all  the  counties, 
or  other  particular  subdivisions  of  the  State,  or  lay 
the  greater  share  or  the  whole  upon  that  county 
or  portion  of  the  State  specially  and  immediately 
benefited  by  the  expenditure. ' '  ^ 

If,  however,  the  purpose  for  which  taxes   are  ^^^'in^to 
levied  is  a  purpose  purely  local,  the  taxes  may  not  be  for^p^ubiVc 

purpose. 

levied  on  another  community  or  other  property  m 
no  way  benefited  by  the  improvement.  Such  an  ex- 
action would  be  a  purely  arbitrary  exercise  of  des- 
potic power,  a  denial  of  due  process  of  law  and  not  a 
tax  in  a  constitutional  sense.  ''Conceding,"  said 
the  Supreme  Court  of  Iowa,  "to  the  General  Assem- 
bly a  wide  range  of  discretion  as  to  the  objects  of 
taxation,  the  kind  of  property  to  be  made  liable,  and 
the  extent  of  territory  within  which  the  local  tax 
may  operate,  .  .  .  there  must  be  some  limit  to 
this  legislative  discretion;  which,  in  the  absence  of 
any  other  criterion,  is  held  to  consist  in  the  discrim- 
ination to  be  made  between  what  may  reasonably  be 
deemed  a  just  tax,  for  which  a  just  compensation  is 
provided  in  the  objects  to  which  it  is  to  be  devoted, 
and  that  which  is  palpably  not  a  tax,  but  which,  under 
the  form  of  a  tax,  is  the  taking  of  private  property 
for  public  use,  without  just  compensation.  If  there 
be   such  a  flagrant   and  palpable   departure   from 

» Mobile  Coimtv  i".  Kimball,  102  U.  S.  691. 


232  DUE  PROCESS  OF  LAW 


Chapter    equality  in  the  burden  imposed ;  if  it  be  imposed  for 

L_  the  benefit  of  others,  and  for  purposes  in  which  those 

objecting  have  no  interest,  and  are,  therefore,  not 
bound  to  contribute,  it  is  no  matter  in  what  form 
the  power  is  exercised  —  whether  in  the  unequal 
levy  of  the  tax,  or  in  the  regulation  of  the  boundaries 
of  the  local  government,  which  results  in  subjecting 
the  party  unjustly  to  local  taxes,  it  must  be  regarded 
as  coming  within  the  prohibition  of  the  Constitution 
designed  to  protect  private  rights  against  aggression, 
however  made,  and  whether  under  the  color  of  recog- 
nized power  or  not."^  But  every  presumption  is 
to  be  made  in  favor  of  the  validity  of  legislative  ac- 
tion, and  unless  the  purpose  is  palpably  of  no  benefit 
to  the  community  or  property  taxed,  unless  there  is 
a  clear  abuse  of  the  legislative  discretion,  the  tax 
will  be  sustained.^ 

SUMMARY    PROCEEDINGS    FOR    COLLECTIOIT. 

Necessity  The  payment  of  taxes  must  frequently  be  en- 

for  sum-  XT     J  i'±. 

kct?on°''  forced  against  a  reluctant  and  adverse  sentunent, 
which  would  gladly  avail  itself  of  every  opportunity 
to  postpone  collection,  while  the  necessities  of  the 
government  for  revenue  may  not  admit  of  the  delays 
incident  to  the  formal  proceedings  of  a  suit  in  court. 
From  time  immemorial  these  conditions  have  been 
recognized,  and  the  most  summary  methods  of  seiz- 
ure and  sale  for  the  satisfaction  of  taxes  and  public 
dues  have  been  authorized  and,  being  recognized 
universally  in  England  and  in  this  country,  they 

1  Morford  v.  Unger,  8  Iowa  82. 

2  Booth  v.  Woodbury,  32  Conn.  128.  And  see  Wilson  v.  Lambert, 
168  U.  S.  Oil;  Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  592, 
supra,  p.  214,  note  9. 


DUE  PROCESS  OF  LAW  233 


have  been  held  to  constitute  due  process  of  law.^    ciuipter 


The  earliest  case  in  the  Federal  Supreme  Court  on 
this  point,  Murray  v.  Hohoken  Land,  etc.,  Co.,^  arose 
in  1855  and  was  likewise  the  first  case  in  which  the 
meaning  of  "due  process  of  law"  was  fully  consid- 
ered. An  Act  of  Congress  provided  that,  when  an 
account  against  an  officer  who  held  public  money 
had  been  adjusted  by  the  auditor  of  the  treasury, 
and  the  officer  found  indebted  to  the  government, 
and  he  neglected  and  refused  to  pay,  the  solicitor  of 
the  treasury  should  thereupon  issue  a  distress  war- 
rant to  the  marshal  of  the  proper  district,  who  was 
authorized  to  seize  and  sell  property  of  the  debtor 
or  his  sureties  in  satisfaction  of  the  debt.  The 
issue  of  the  warrant  and  the  seizure  and  sale  of  the 
debtor 's  property  thereunder  were  held  to  constitute 
due  process  of  law.  By  a  historical  review,  it  was 
shown  that  similar  summary  process  for  the  collec- 
tion of  taxes  and  debts  due  the  government  was  sus- 
tained by  usage  both  in  England  and  in  the  United 
States,  and  it  was  held  that  the  act  of  the  auditor 
in  passing  on  the  accounts  submitted  to  him,  although 
made  conclusive  until  reviewed  by  the  courts,  was  not 
a  judicial  act  in  such  a  sense  that  Congress  could  not 
under  the  circumstances  submit  the  ascertainment 
of  the  balance  to  an  administrative  officer. 

In  a  later  case  holding  the  summary  seizure  and  Summary 

'-'  '  process 

sale  of  property  for  taxes  to  a  State  due  process  of  ™e"lrbi-°^ 
law,  the  court  said:     ''The  mode  of  assessing  taxes  ^'^'^' 
in  the  States  by  the  federal  government,  and  by  all 

3  Springer  v.  U.  S.,  102  U.  S.  586 ;  Kelly  r.  Pittsburgh,  104  U.  S. 
78;  Leigh  r.  Green,  193  U.  S.  79,  88;  Scottish  Union,  etc.,  Ins.  Co. 
f.  Bowland.  196  U.  S.  611.     See  supra,  p.  53. 

4  18  How.   (U.  S.)  272.     See  also  King  v.  Mullins,  171  U.  S.  429. 


234  DUE  PROCESS  OF  LAW 

Copter    governments,  is  necessarily  summary,  that  it  may  be 

speedy  and  effectual.    By  summary  is  not  meant 

arbitrary  or  unequal  or  illegal.  It  must  under  our 
Constitution  be  lawfully  done.  But  that  does  not 
mean  nor  does  the  phrase  'due  process  of  law'  mean 
by  a  judicial  proceeding.  The  nation  from  whom  we 
inherit  the  phrase  'due  process  of  law'  has  never 
relied  upon  the  courts  of  justice  for  the  collection  of 
her  taxes,  though  she  passed  through  a  successful 
revolution  in  resistance  to  unlawful  taxation."^ 
Retroactive         lutcrcst  and  costs  in  a  proceeding  to  collect  delin- 

statute  ^  ^ 

pStyfor   qiient  taxes  may  be  imposed  by  the  State,  and  the 
memf^'       statute  made  applicable  to  existing  cases  of  delin- 
quency without  violating  any  right  guaranteed  by 
the  Federal  Constitution.^ 
Forfeiture  It  has  bccu  hcM  LQ  somc  Statcs  in  accordance  with 

for  nonpay- 
ment of       what  appear  to  be  just  principles  on  the  subject,  that 

the  State  cannot  declare  the  forfeiture  of  lands  as  a 
penalty  for  non-payment  of  taxes  without  provision 
for  some  proceeding  in  which  the  owner  may  be  en- 
titled upon  notice  to  present  objections  and  defenses 
to  the  proposed  forfeiture.'^  Other  States  have  de- 
clared an  absolute  forfeiture  to  be  valid  and  con- 
stitutional.^ A  case  which  arose  in  West  Virginia, 
where  such  proceedings  were  held  to  be  valid,  came 
before  the  Federal  Supreme  Court,  and  that  tri- 
bunal found  it  possible  to  dispose  of  the  points  in- 


BMcMillen  v.  Anderson,  95  U.  S.  37. 

6  League  v.  Texas.  184  U.  S.  156. 

7  Marshall  v.  McDaniel,  12  Bush  (Ky.)  378;  Griffin  V.  Mixon, 
38  Miss.  424;  Parish  r.  East  Coast  Cedar  Co.,  133  N.  Car.  478. 

f  Wild  r.  Serpell.  10  Gratt.  (Va.)  405;  Levasser  V.  Washburn, 
11  Gratt.  (Va.)  572;  McClure  v.  Maitland,  24  W.  Va,  561;  Holly 
River  Coal  Co.  v.  Howell,  36  W.  Va.  489. 


DUE  PROCESS  OF  LAW  235 

volved  without  committing  itself  to  either  theory.    Chapter 

VII 

The  statutes  of  West  Virginia  provided  that  lands  — 

so  forfeited  should  be  sold  for  the  benefit  of  the 
school  fund,  that  for  this  purpose  the  commissioner 
of  the  school  fund  should  institute  a  proceeding  in 
the  Circuit  Court,  and  that  in  this  proceeding  the 
owner  might  intervene  upon  due  notice  and  secure  a 
redemption  of  his  lands  by  payment  of  the  taxes  and 
charges.  These  provisions  were  held  to  constitute 
due  process  of  law  and  to  remove  all  constitutional 
objections  to  the  statute.^ 

A  charge  in  the  nature  of  a  tax  on  a  prescribed  occupation 

^  -^  tax  made 

vocation  may  be  made  a  lien  upon  the  real  property  property. 
whereon  the  vocation  is  conducted,  if  to  the  owner  of 
the  property  is  given  a  reasonable  notice  and  oppor 
tunity  to  present  objections  before  the  lien  attaches.* 

NOTICE   AND   HEARING. 

While   the  legislature's  power  to  impose  and  ^fYiSL 
apportion  taxes  is  in  many  respects  unlimited,  the  Tature'aftr 
legislature  must  generally  in  providing  for  their    *''"'^" 
assessment  and  collection  afford  a  hearing  or  an  op- 
portunity to  be  heard  to  the  taxpayer.     The  right  to 
notice  and  a  hearing  does  not  exist  as  to  any  matter 
which  the  legislature  rightfully  determines  in  provid- 
ing for  the  tax.    We  have  seen  that  the  right  to 
select  the  subjects  and  the  method  of  taxation  is 
inherent  in  and  inseparable  from  the  taxing  power. 
The  selection  of  the  subjects  of  taxation,  especially 
where  the  tax  is  a  local  one  or  a  special  assessment 
in  return  for  benefits,  may  involve  an  adjudication 

»King  r.  Mullins,  171  U.  S.  429. 

1  Hodge  V.  Muscatine  County,  196  U.  S.  276. 


236 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Ad  va- 
lorem and 
specific^ 
taxes  dis- 
tinguished. 


that  particular  property  is  liable  to  the  tax,-  and  the 
selection  of  a  particular  method  of  taxation,  for  in- 
stance, a  specific  instead  of  an  ad  valorem  tax,  may 
involve  an  adjudication  as  to  the  amount  due  from 
the  individual  taxpayer.^  The  choice  of  a  specific 
tax  by  the  legislature  does  not,  however,  deprive  the 
individual  taxpayer  of  due  process  of  law,  for  so  far 
as  the  determination  of  a  question  of  fact  is  inci- 
dentally involved  in  the  course  adopted,  that  deter- 
mination is  a  necessary  consequence  of  the  exercise 
of  the  taxing  power.  But  the  legislature  may  adopt 
a  different  course,  leaving  such  questions  for  deter- 
mination by  the  officials  charged  with  the  execution 
of  the  taxing  laws,  who  act  in  a  judicial  or  quasi- 
judicial  capacity  and  must  proceed  on  notice  and 
hearing.  This  is  necessarily  the  case,  when,  instead 
of  a  specific,  an  ad  valorem  tax  is  selected.  Then 
before  an  individual  liability  for  the  tax  can  arise,  it 
is  essential  that  there  be  an  assessment  of  the  prop- 
erty to  be  taxed,  and  an  apportionment  of  the  tax 
in  accordance  with  the  valuation  determined  by  as- 
sessment and  the  rate  of  taxation.^  Thus  the  field 
of  individual  right  to  notice  and  hearing  may  be 
widened  or  narrowed  with  the  action  of  the  legisla- 
ture. 

2  See  infra,  p.  246. 

3  Hodge  V.  Muscatine  County,  196  U.  S.  276.  280. 

*  The  distinction  here  noticed  between  specific  and  ad  valorem 
taxes  was  pointed  out  by  Mr.  Justice  Field  in  Hagar  v.  Reclamation 
Dist.  No.  108,  111  U.  S.  709.  "  Of  the  different  kinds  of  taxes  which 
the  State  may  impose,"  it  is  there  said,  "  there  is  a  vast  number  of 
which,  from  their  nature,  no  notice  can  be  given  to  the  taxpayer, 
nor  would  notice  be  of  any  possible  advantage  to  him.  such  as  poll- 
taxes,  license  taxes  (not  dependent  upon  the  extent  of  his  business), 
and  generally  specific  taxes  on  things  or  persons  or  occupations.  In 
such  cases  the  legislature  in  authorizing  the  tax  fixes   its  amount, 


DUE  PROCESS  OF  LAW  237 

Ordinarily  the  process  of  assessment  is  committed    Chapter 

to  executive  officers,  who  in  the  performance  of  their  '— 

quasi-judicml  functions  must  give  the  property  own-  delegate*/ 
er  notice  and  an  opportunity  to  present  objections,  jstratwe 
wherever  the  action  of  the  legislature  has  left  open 
any  question  upon  which  a  hearing  may  possibly 
change  official  action.  But  at  least  where  the 
property  taxed  is  certain  in  value,  as  is  money,  the 
interest  on  bonds,  the  face  value  of  securities,  etc., 
no  assessment  is  essential  other  than  the  statute  fix- 
ing the  rate  of  taxation.^  And  the  statute  imposing 
the  tax  may  of  itself  constitute  due  process  of  law 
by  providing  a  time  and  place  for  the  meeting  of  the 
assessing  board,  and  giving  an  opportunity  for  a 
hearing.^ 

and  that  is  the  end  of  the  matter.  If  the  tax  be  not  paid,  the 
property  of  the  delinquent  may  be  sold  and  he  be  thus  deprived  of 
his  property.  Yet  there  can  be  no  question  that  the  proceeding  is 
due  process  of  law,  as  there  is  no  inquiry  into  the  weight  of  evidence, 
or  other  element  of  a  judicial  nature,  and  nothing  could  be  changed 
by  hearing  the  taxpayer.  No  right  of  his  is  therefore  invaded." 
After  instancing  particular  taxes  which  fall  under  this  class,  the 
learned  judge  proceeded:  "But  where  a  tax  is  levied  on  property 
not  specifically,  but  according  to  its  value,  to  be  ascertained  by 
assessors  appointed  for  that  purpose,  upon  such  evidence  as  they 
may  obtain,  a  different  principle  comes  in.  The  officers  in  estimating 
the  value  act  judicially,  and  in  most  of  the  States  provision  is  made 
for  the  correction  of  errors  committed  by  them,  through  boards  of 
revision  or  equalization  sitting  at  designated  periods  provided  by 
law,  to  hear  complaints  respecting  the  justice  of  the  assessments. 
The  law,  in  prescribing  the  time  when  such  complaints  will  be  heard, 
gives  all  the  notice  required,  and  the  proceeding  by  which  the  valu- 
ation is  determined,  though  it  may  be  followed  if  the  tax  be  not 
paid,  by  a  sale  of  the  delinquent's  property,  is  due  process  of  law." 

5  Dollar  Sav.  Bank  v.V.  S.,  19  Wall.  (U.  S.)  240;  U.  S.  r.  Erie 
R.  Co.,  107  U.  S.  1;  U.  S.  r.  Philadelphia,  etc.,  R.  Co.,  123  U.  S. 
113;  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232. 

6  Palmer  v.  McMahon,  133  U.  S.  669;  Pittsburgh,  etc.,  R.  Co.  V. 
Backus,  154  U.  S.  421;  Merchants',  etc.,  Bank  v.  Pennsylvania,  167 


238 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 

General 
taxes. 


Notice 
varies  with 
subject- 
matter. 


Statutes  imposing  general  taxes  usually  provide 
for  an  annual  levy  and  fix  the  time  within  which  the 
assessment  shall  be  made,  a  specific  time  and  place 
for  the  equalization  of  the  assessment  and  the  levy 
of  the  tax,  a  time  within  which  the  amount  of  the 
tax  shall  be  placed  in  the  tax  books,  a  specific  thne 
for  the  tax  books  to  be  delivered  to  the  collector  or 
treasurer,  and  a  specific  time  for  the  tax  to  become 
a  lien  on  the  property  taxed,  and  this  is  enough  to 
constitute  due  process  of  lawJ  The  Federal  Su- 
preme Court  in  a  case  decided  in  1902  remarked  that 
while  the  exact  requirements  of  due  process  in  the 
assessment  and  collection  of  general  taxes  had  never 
been  determined  by  the  court,  yet  proceedings  in 
such  cases  are  to  be  construed  "with  the  utmost 
liberality,  sometimes  even  to  the  extent  of  holding 
that  no  notice  whatever  is  necessary."^  In  the 
same  case  the  court  declared  that  it  was  well  settled 
in  that  court  that  to  constitute  due  process  of  law 
in  proceedings  ''for  the  imposition  of  special  taxes 
for  local  improvements,  notice  to  the  owner  at  some 
stage  of  the  proceedings,  as  well  as  an  opportunity 
to  defend,  is  essential."  ® 

It  has  been  stated,  in  discussing  the  essentials  of 
due  process  and  the  general  requirements  of  notice, 
that  the  notice  required  to  render  a  proceeding  valid, 

U.  S.  461,  466.     See  Kentucky  Railroad  Tax  Cases,  115  U.  S.  .331, 
and  supra,  p.  83. 

7  Winona,  etc..  Land  Co.  v.  Minnesota,  159  U.  S.  526 ;  Gilmore  v. 
Hentig,  33  Kan.  156,  169,  170. 

8  Turpin  v.  Lemon,  187  U.  S.  57,  58.  And  see  Glidden  v.  Harring- 
ton, 189  U.  S.  255,  258. 

BTurpin  v.  Lemon,  187  U.  S.  58,  citing  Hagar  v.  Reclamation 
Dist.  No.  108,  111  U.  S.  701 J  Paulsen  v.  Portland,  149  U.  S.  30.  See 
also  supra,  p.  76. 


DUE  PROCESS  OF  LAW  239 

when  tested  by  the  due  process  of  law  clause  of  the    ^yJl*^'" 

Constitution,  varies  with  the  circumstances  of  the  ■ 

case  and  ''the  cause  and  objects  of  the  taking,"  ^  and 
that  the  notice  required  for  the  lawful  exercise  of 
eminent  domain  or  the  police  power  is  not  the  same 
as  that  required  in  proceedings  for  taxation.^  Since 
proceedings  for  the  assessment  and  collection  of 
taxes  were  in  constant  use  long  before  the  adoption 
of  the  Constitution  and  have  been  necessarily  em- 
ployed by  the  federal  government  and  the  various 
States  ever  since  their  formation,  the  rule  that  what- 
ever proceedings  are  in  accord  with  settled  usage  in 
England  and  in  this  country  constitute  due  process,^ 
is  peculiarly  applicable  to  test  the  sufficiency  of  the 
notice  and  hearing  required  in  such  cases.  In  con- 
formity with  this  principle,  it  has  been  held  that 
the  process  of  taxation  "involves  no  violation  of 
due  process  of  law  when  it  is  executed  according  to 
customary  forms  and  established  usages,  or  in  sub- 
ordination to  the  principles  which  underlie  them."  ^ 

A  proceeding  for  the  assessment  and  collection  of  tion  sum- 

cient 

taxes  may  so  far  partake  of  the  nature  of  a  proceed- 
ing in  rem  that  notice  by  publication  is  sufficient 
to  give  jurisdiction.^  Thus  a  proceeding  strictly 
against  property  to  enforce  by  sale  a  lien  for  unpaid 

1  See  supra,  p.  80. 

2  Bell's  Gap   R.  Co.  v.  Pennsylvania,  134  U.  S.  232. 

3  See  supra,  p.  53. 

4  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232,  239.  See  also 
Turpin  v.  Lemon,  187  U.  S.  51,  57,  59. 

5  Lent  V.  Tillson,  140  U.  S.  316;  Paulsen  V.  Portland,  149  U.  S. 
30;  Pittsburgh,  etc.,  R.  Co.  V.  Backus,  154  U.  S.  421;  Merchants', 
etc..  Bank  r.  Pennsylvania,  167  U.  S.  461;  Bellingham  Bay,  etc.,  R. 
Co.  V.  New  Whatcom,  172  U.  S.  318.  And  see  the  quotations  from 
Dillon  V.  Heller,  39  Kan.  599,  in  Arndt  v.  Griggs,  134  U.  S.  316. 


240  DUE  PROCESS  OF  LAW 

Cimpter    taxes  does  not  require  personal  notice/'  but  no  per- 

sonal    judgment    against   a    nonresident    owner    is 

valid  in  such  a  case  unless  lie  has  been  personally 
served  with  notice  within  the  jurisdiction,  or  has  vol- 
untarily appeared/  In  a  case  holding  notice  by 
publication  sufficient  for  the  assessment  of  "the  or- 
dinary annual  tax  upon  personal  property,"  it  was 
declared:  "It  can  only  be  said  that  such  notices 
shall  be  given  as  are  suitable  in  a  given  case,  and  it 
is  only  where  the  proceedings  are  arbitrary,  oppres- 
sive, or  unjust  that  they  are  declared  to  be  not  due 
process  of  law."^ 
ffJotfce^  I^  ^^^  celebrated  case  of  Davidson  v.  Neiv  Or- 
Mifk/,j.  leans, ^  which  involved  the  legality  of  a  special  as- 
sessment for  draining  swamp-lands,  the  court  laid 
down  the  often  quoted  principle  ' '  that  whenever,  by 
the  laws  of  a  State,  or  by  State  authority,  a  tax,  as- 
sessment, servitude,  or  other  burden  is  imposed  upon 
property  for  the  public  use,  whether  it  be  for  the 
whole  State  or  some  more  limited  portion  of  the 
community,  and  those  laws  provide  for  a  mode  of 
confirming  or  contesting  the  charge  thus  imposed,  in 
the  ordinary  courts  of  justice,  with  such  notice  to 
the  person,  or  such  proceeding  in  regard  to  the  prop- 
erty, as  is  appropriate  to  the  nature  of  the  case,  the 
judgment  in  such  proceedings  can  not  be  said  to  de- 
prive the  owner  of  his  property  without  due  process 

6  Leigh  V.  Green,  193  U.  S.  79 ;  French  v.  Taylor,  199  U.  S.  274. 

7  Dewey  v.  Des  Moines,  173  U.  S.  193. 

sGlidden  v.  Harrington,  189  U.  S.  255,  258.  See  the  concurring 
opinion  of  Bradley,  J.,  in  Davidson  v.  New  Orleans,  96  U.  S.  97, 
whence  this  statement  is  in  effect  taken. 

»96  U.  S.  97. 


DUE  PROCESS  OF  LAW  241 

of  law,  however  obnoxious  it  may  be  to  other  ob-    ^^Pj^'^ 

jections."^  

In  harmony  with  this  rule,  the  property  owner  Pioas!^^' 
need  not  be  present  when  his  property  is  assessed,^ 
and  it  is  sufficient  that  at  some  stage  of  the  proceed- 
ings, as,  for  instance,  before  a  board  of  equaliza- 
tion,^ or  in  the  courts  by  a  proceeding  to  review  the 
assessment,  he  may  be  heard  on  the  question  of  the 
amount  of  his  tax.*  It  is  only  necessary  that  an 
opportunity  to  test  the  validity  and  fairness  of  the 
tax  be  given  before  it  has  become  a  fixed  and  perma- 
nent charge  on  the  property  owner.^  Thus  when  a 
statute  provides  that  those  whose  property  is  to  be 
taken  for  a  local  improvement  shall  be  heard  as  to 
its  necessity  and  makes  no  provision  for  notice  to 
those  who  may  be  assessed  therefor,  the  latter  can- 
not complain  if  a  hearing  is  given  to  them  on  the 
amount  of  their  assessments.®  The  opportunity 
may  exist  before  the  assessing  board,  and  when  this 
is  the  case,  no  further  hearing  nor  right  of  review 
need  be  provided^ 

1  Quoted  in  Hagar  v.  Reclamation  Dist.  No.  108,  111  U.  S.  701; 
Kentucky  Railroad  Tax  Cases,  115  U.  S.  321;  Lent  v.  Tillson,  140 
U.  S.  316;  Leigh  v.  Green,  193  U.  S.  88. 

2McMillen  v.   Anderson,  95  U.  S.  37. 

3  Palmer  v.  McMahon,  133  U.  S.  669. 

4  Spencer  v.  Merchant,  125  U.  S.  345 ;  Paulsen  v.  Portland,  149 
U.  S.  30;  Winona,  etc.,  Land  Co.  v.  Minnesota,  1.59  U.  S.  536;  Pitts- 
burgh, etc.,  R.  Co.  V.  Board  of  Public  Works,  172  U.  S.  45. 

5  Winona,  etc..  Land  Co.  r.  Minnesota,  159  U.  S.  537;  Weyer- 
haueser  v.  Minnesota,  176  U.  S.  550;  Gallup  v.  Schmidt,  183  U.  S. 
300,  307;  Hodge  v.  Muscatine  County,  196  U.  S.  276.  281;  Gilmore 
r.  Hentig,  33  Kan.  169,   170. 

eVoigt  r.  Detroit,  184  U.  S.  115;  Goodrich  v.  Detroit,  184  U.  S. 
432. 

'Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347;  Fall- 

16 


242 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Appraise- 
ment of 
imported 
goods. 


Statute 
providing 
for  "hear- 
ing." 


The  ascertainmeiit  and  collection  of  duties  on  im- 
ported merchandise  is  subject  to  the  same  princi- 
ples. By  statute  the  value  fixed  by  the  appraisers 
is  made  conclusive,  subject  to  impeachment  when 
they  have  proceeded  fraudulently,  on  a  wrong  prin- 
ciple, contrary  to  law,  or  have  transcended  the 
powers  conferred  by  statute.^  The  appraisers  are 
vested  with  (^wasi-judicial  powers,  and  their  deter- 
mination by  value,  though  summary,  is  due  process 
of  law.^  It  was  not  the  intention  of  Congress  nor  is 
it  necessary  to  the  rights  of  importers  that  the  ap- 
praisement should  be  conducted  as  is  the  trial  of  an 
issue  in  a  suit  in  a  judicial  tribunal.  Consequently, 
the  importer  can  not  complain  that  he  is  not  allowed 
to  be  present  throughout  the  proceedings,  that  he  is 
not  allowed  to  confront  the  witnesses  summoned,  or 
to  cross-examine  them.^ 

The  Hearing  Actually  Provided. 

The  extent  of  the  hearing  actually  provided  for  in 
a  given  case  must  depend  upon  the  statute  laying  or 
authorizing  the  tax. 

When  a  statute  provides  for  ''a  hearing"  in  con- 
nection with  the  question  whether  a  proposed  public 
improvement  shall  be  undertaken  the  natural  con- 
struction is  that  the  hearing  extends  to  everything 
which  is  essential  to  the  validity  of  the  undertaking. 

brook  Irrigation  Dist.  v.  Bradley,  164  U.  S.   112;   Hibben  v.  Smith, 
191  U.  S.  310. 

spassavant  V.  U.  S.,  148  U.  S.  214;  Origet  v.  Hedden,  155  U.  S. 

228. 

9  Hilton  V.  Merritt,  110  U.  S.  97;  Earnshaw  v.  U.  S.,  146  U.  S. 
60;  Passavant  v.  U.  S.,  148  U.  S.  214. 

1  Auffraordt  v.  Hedden,  137  U.  S.  310. 


DUE  PROCESS  OF  LAW  243 

A  California  statute  for  the  formation  of  irrigation    ciKipter 

districts  provided  that  a  petition  for  the  formation  

of  the  district,  signed  by  a  majority  of  the  property 
owners  in  the  territory  to  be  included,  must  be  pre- 
sented to  the  board  of  county  supervisors  at  a  regu- 
lar meeting,  after  publication  of  the  petition  for  two 
weeks  with  notice  of  the  time  of  the  meeting  when 
it  was  to  be  presented,  and  that  the  ''board  shall 
hear  the  same,"  and  establish  the  boundaries  of  the 
district,  subject  to  the  proviso  that  it  had  no  power 
to  exclude  lands  included  in  the  petition,  if  suscep- 
tible of  irrigation  as  petitioned  for,  nor  to  include 
lands  "which  will  not  in  the  judgment  of  the  board 
.be  benefited"  by  such  irrigation.  The  statute  fur- 
ther provided  that  when  the  district  had  been  thus 
defined,  an  election  should  be  held  therein  upon  the 
question  whether  it  should  be  organized  and  for  the 
designation  of  directors ;  that  if  the  district  was  or- 
ganized, the  directors  elected  should  organize  as  a 
board,  one  of  whose  duties  should  be  at  a  duly  ad- 
vertised meeting  at  a  time  specified  to  examine  the 
assessment  of  the  property  for  the  district  made  by 
the  proper  officer  and  "hear  and  determine  such  ob- 
jections to  the  valuation  and  assessment  as  may 
come  before  them,  and  the  board  may  change  the  val- 
uation as  may  be  just."  The  United  States  Cir- 
cuit Court  for  the  Southern  District  of  California 
held  the  statute  void  under  the  Fourteenth  Amend- 
ment, for  the  reason,  inter  alia,  that  property  own- 
ers were  given  no  hearing  on  the  sufficiency  of  the 
petition  which  lay  at  the  foundation  of  the  whole 
proceeding.2    Tj^e  United  States  Supreme  Court  re- 

2  Bradley  v.  Fallbrook  Irrigation  Dist.,  (CCA.)  68  Fed.  Rep.  948. 


244  DUE  PROCESS  OF  LAW 

ci^pter    versed  this  decision,  declaring  that  the  statute  pro- 

•  vided   for  notice   and   hearing   on  every   essential 

point.  In  holding  that  a  hearing  as  to  the  sufficiency 
of  the  petition  and  the  validity  of  the  preliminary 
steps  in  organization,  as  well  as  the  fact  of  benefit 
to  the  land  included,  was  afforded,  Mr.  Justice  Peck- 
ham,  for  the  court,  said:  "When  the  act  speaks  of 
a  hearing  of  the  petition,  what  is  meant  by  HI  Cer- 
tainly it  must  extend  to  a  hearing  of  the  facts  stated 
in  the  petition,  and  whether  those  who  sign  it  are 
sufficient  in  number  and  are  among  the  class  of  per- 
sons mentioned  in  the  act,  as  alone  having  the  right 
to  sign  tlie  same.  The  obvious  purpose  of  the  pub- 
lication of  the  notice  of  the  intended  presentation  of 
the  petition  is  to  give  those  who  are  in  any  way  in- 
terested in  the  proceeding  an  opportunity  to  ap- 
pear before  the  board  and  be  heard  upon  all  the 
questions  of  fact,  including  the  question  of  benefits  to 
lands  described  in  the  petition.  ...  It  can  not  be 
doubted  that,  by  the  true  construction  of  the  act,  the 
board  of  supervisors  is  not  only  entitled,  but  it  is  its 
duty,  to  entertain  a  contest  by  a  landowner  in  re- 
spect to  the  question  whether  the  signers  of  the  pe- 
tition fulfil  the  requirements  described  in  the  first 
section  of  the  act,  and  if  the  board  find  in  favor  of 
the  contestant  upon  that  issue,  it  is  the  duty  of  the 
board,  under  the  provisions  of  the  statute,  to  deny 
the  petition  and  dismiss  the  proceedings.  Otherwise, 
what  is  the  hearing  for?  And  if  upon  a  hearing  of 
the  question  of  benefits  to  any  land  described  in  the 
petition  it  appears  to  the  board  that  such  lands  will 
not  be  benefited,  it  is  the  duty  of  the  board  to  so 
decide,  and  to  exclude  the  lands  from  the  district. 


DUE  PROCESS  OF  LAW  245 

The  inclusion  of  any  lands  is  therefore,  in  and  of  it-    ^^Pj" 

self,  a  determination   (after  an  opportunity  for  a  

hearing)  that  they  will  be  benefited  by  the  proposed 
irrigation."  ^ 

When  a  statute  provides  that  a  tax  can  be  en-  ^,Y?is 
forced  only  by  suit  in  a  regular  court  of  justice,  in  "an"dY-^' 

•  1111  fense"  is 

the  absence  of  special  provisions  of  the  local  law  admissible. 
limiting  the  defenses  which  may  be  made  to  such  a 
suit,  the  Federal  Supreme  Court  declares  that  ''as  a 
principle  of  general  jurisprudence,  it  is  safe  to  say, 
that  any  defense  is  admissible  which  establishes  the 
illegality  of  the  proceeding  resulting  in  the  alleged 
assessment,  whether  because  it  is  in  violation  of  the 
local  law  which  is  relied  on  as  conferring  the  au- 
thority upon  which  it  is  based,  or  because  it  consti- 
tutes a  denial  of  a  right  secured  to  the  party  com- 
plaining by  the  Constitution  of  the  United  States. ' '  ^ 

Though  no  hearing  is  provided  on  the  question  of  S?lr  a"! 
fixing  a  taxing  district  or  on  the  aggregate  amount  fnvoTvTsits 

^  ^  legality. 

to  be  assessed  on  the  district,  when  both  these  mat- 
ters are  delegated  to  local  authorities,  yet  if  a  hear- 
ing is  given  to  the  property  owner  to  test  the  legality 
of  the  charge  upon  him,  there  is  provision  for  due 
process  of  law.  ''In  the  legality  of  that  charge  is 
necessarily  involved  the  legality  of  all  which  pre- 
cedes it  and  of  which  it  is  the  consequence.'"^ 

The  necessity  of  provision  for  a  hearing  implies  SS'Ser- 

,  1  -i  M  cise  honest 

that  the  act  of  assessment  can  not  be  arbitrarily  per-  judgment. 
formed  but  demands  the  honest  judgment  of  the  as- 
sessors, and  the  statute  need  not  prescribe  the  rule 

3  Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  171,  173. 

4  Kentucky  Eailroad  Tax  Cases,  115  U.  S.  336. 

sVoifft  V.  Detroit,  184  U.  S.  115;  Goodrich  v.  Detroit,  184  U.  S. 
432.     And  see  Weyerhaueser  v.  Minnesota,  176  U.  S.  550. 


246 


DUE  PROCESS  OF  LAW 


Chapter 

vn. 


Legislative 
functions 
in  laying 
local  as- 
sessments. 


for  arriving  at  the  valuation  of  the  i^roperty,  but 
may  leave  to  taxing  officers  the  power  to  adopt  a 
suitable  rule.^  Wlien  it  was  objected  to  the  valua- 
tion of  property  by  a  board  of  tax  assessors,  that  the 
law  furnished  no  rule  for  ascertaining  the  value  of  a 
special  franchise  included  in  the  assessment  along 
with  tangible  property,  and  that,  as  the  board  fol- 
lowed no  principle  in  arriving  at  the  total  value, 
it  must  have  indulged  in  mere  guesswork,  which 
amounted  to  a  deprivation  of  due  process  of  law,  the 
Supreme  Court  supported  the  assessment.  After 
pointing  out  that  hearing  was  amply  provided  for, 
it  said:  ''It  will  not  do  to  say  that  the  valuation 
of  a  piece  of  property  is  mere  guesswork.  True,  it 
is  often  largely  a  matter  of  opinion,  and  mathemat- 
ical exactness  is  not  always  possible.  Various  ele- 
ments enter  into  and  affect  an  opinion  respecting  the 
value  of  a  given  piece  of  property,  and  all  that  can 
be  required  is  that  the  assessing  board  exercise  an 
honest  judgment  based  upon  the  information  it  pos- 
sesses or  is  able  to  acquire.  That  valuation  is  of  the 
property  as  a  totality,  and  it  is  unnecessary  in  mak- 
ing an  assessment  to  disintegrate  the  various  ele- 
ments which  enter  into  it  and  ascribe  to  each  its 
separate  fraction  of  value.  Oftentimes  the  combi- 
nation itself  is  no  inconsiderable  factor  in  creating 
the  value."  "^ 

LOCAL  ASSESSMENTS. 

The  making  of  a  public  improvement,  such  as 
opening  or  grading  a  street,  laying  sewer-pipes,  or 

e  Western  Union  Tel.  Co.  v.  Missouri,   190  U.  S.  412,  425.     See 
also  supra,  p.  68. 

7  Brooklyn  City  R.  Co.  v.  Tax  Com'rs,  199  U.  S.  48. 


DUE  PROCESS  OF  LAW  247 

draining  or  irrigating  lands,  involves  the  determina-    Chapter 

tion  of  various  matters  of  fact.     The  necessity  or  -- 

propriety  of  the  improvement  itself,  the  method  by 
which  its  expenses  shall  be  defrayed,  and,  if  a  local 
assessment  is  determined  on,  the  extent  of  the  area 
upon  which  it  is  to  be  laid  and  the  manner  of  appor- 
tioning it  upon  the  several  parcels  of  property  lying 
within  the  limits  fixed  upon,  must  all  be  decided. 
Every  question  belonging  to  the  raising  of  funds  to 
meet  the  costs  of  such  an  improvement,  from  the 
creation  of  a  taxing  district  or  the  determination  of 
the  lands  benefited  thereby,  to  the  apportionment 
and  collection  of  the  assessment  laid,  belongs  to  the 
legislature.  There  can  be  no  doubt  that  "the  legis- 
lature in  the  exercise  of  the  right  of  taxation  has 
the  authority  to  direct  the  whole  or  such  part  as  it 
may  prescribe,  of  the  expense  of  a  public  improve- 
ment, such  as  the  establishing,  the  widening,  the 
grading  or  the  repair  of  a  street,  to  be  assessed  upon 
the  owners  of  lands  benefited  thereby.  .  .  .  The  rule 
of  apportionment  among  the  parcels  of  land  bene- 
fited also  rests  within  the  discretion  of  the  legisla- 
ture, and  [the  burdens  to  be  borne  by  them]  may  be 
directed  to  be  in  proportion  to  the  position,  the 
frontage,  the  area,  or  the  market  value  of  the  lands, 
or  in  proportion  to  the  benefits  as  estimated  by  com- 
missioners."^ 

8  Bauman  v.  Ross,  167  U.  S.  548.  And  see  Mattingly  v.  District 
of  Columbia,  97  U.  S.  687,  692.  For  instances  of  valid  assessments 
based  on  frontage,  see  French  v.  Barber  Asphalt  Paving  Co.,  181 
U.  S.  324;  Chadwick  v.  Kelley,  187  U.  S.  540;  Seattle  v.  Kelleher, 
195  U.  S.  351;  on  value.  Fallbrook  Irrigation  Dist.  v.  Bradley.  164 
U.  S.  112;  on  area,  Walston  r.  Nevin,  128  U.  S.  578;  Louisville,  etc., 
R.  Co.  r.  Barber  Asphalt  Paving  Co.,  197  U.  S.  430;  on  benefits, 
King  V.  Portland,  184  U.  S.  61. 


248 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Delegation 
of  legisla- 
tive func- 
tions. 


In  exercising  its  power,  the  legislature  may  either 
act  directly,  determining  the  area  benefited  and  the 
rate  of  aiDportionment  absolutely ;  or  it  may  delegate 
to  local  authorities  the  power  to  decide  as  to  the 
necessity  of  the  improvement,  the  area  which  will  be 
benefited,  and  the  rule  of  apportionment,  and  this 
delegation  may  cover  all  or  any  of  these  points. 
The  Federal  Supreme  Court  holds  that  the  legisla- 
ture acting  directly  may  determine  the  district  bene- 
fited by  a  public  improvement  and  lay  down  an  ab- 
solute rule  as  to  the  apportionment  of  the  expense 
among  the  parcels  of  land  included.  When  this 
course  is  adopted  the  act  of  the  legislature  must  be 
deemed  conclusive  alike  of  the  question  of  the  neces- 
sity of  the  work,  and  of  the  benefits  as  against  abut- 
ting property,  and  to  open  such  questions  to  review 
by  the  courts  upon  the  petition  of  any  and  every 
property  holder  would  create  endless  confusion. 
But  when  the  legislature  delegates  to  municipal  or 
local  authorities  the  determination  of  the  property 
benefited  or  the  rule  of  apportionment,  or  the  pro- 
priety of  making  the  improvement,  or  some  or  all 
of  these  questions,  they  become  in  their  nature  ju- 
dicial in  such  a  sense  that  the  property  owner  is 
entitled  to  a  hearing  or  to  notice  and  an  opportunity 
to  be  heard.^ 

In  some  State  courts  it  has  been  held,  however, 
that  the  legislature  exceeds  its  powers  in  enacting  a 


»  Spencer  v.  Merchant,  125  U.  S.  345;  Walston  v.  Nevin,  128  U.  S. 
578;  Paulsen  V.  Portland,  149  U.  S.  .30;  Fallbrook  Irrigation  Dist. 
V.  Bradley,  164  U.  S.  112;  Bauman  v.  Ross,  167  U.  S.  548;  Parsons 
V.  District  of  Columbia,  170  U.  S.  45;  French  v.  Barber  Asphalt 
Paving  Co.,  181  U.  S.  324;  Louisville,  etc.,  R.  Co.  v.  Barber  Asphalt 
Paving  Co.,  197  U.  S.  430. 


DUE  PROCESS  OF  LAW  249 

statute  which  absolutely  fixes  the  proportion  of  ex-    ^y[j^^ 

pense  to  be  borne  by  abutting  owners/  or  which 

makes  no  provision  for  the  indemnification  of  the  state  hold- 
ing against 

owner  of  the  land  subjected  to  the  operation  of  the  ^J^^l^/isia- 
law,  in  case  the  expense  of  improvements  shall  ex-  dedare^ab- 
ceed  the  benefits  which  shall  be  conferred.^     These  b°ih?of' 

abutters. 

cases  proceed  upon  the  ground  that  no  rule  oi  ap- 
portionment can  be  adopted  by  the  legislature  which 
does  not  provide  for  the  equating  of  benefits  to  bur- 
dens in  the  individual  case;  because  if  the  area 
benefited  or  the  method  of  apportionment  is  fixed 
absolutely  by  the  legislature,  in  individual  cases  the 
burden  may  exceed  the  benefit,  and  the  moment  this 
happens  property  is  taken  without  compensation  for 
a  public  purpose,  and  there  is  no  longer  a  rightful 
exercise  of  the  taxing  power  but  a  wrongful  exercise 
of  the  power  of  eminent  domain.  Statutes  under 
which  such  results  may  ensue  are  without  the  tax- 
ing power  and  unconstitutional. 

In  Norwood  v.  Baker, ^  the  United  States  Supreme  PosWo^n 
Court,  in  holding  a  particular  assessment  void  as  ^^^^^ 
being  a  deprivation  of  property  without  due  process 
of  law,  indulged  in  reasoning  which  seemed  to  go  to 
the  whole  length  of  denying  the  power  of  the  legisla- 
ture to  lay  down  an  absolute  rule  of  apportionment 
without  providing  for  a  hearing.  The  case  came  up 
from  the  United  States  Circuit  Court  for  the  South- 
ern District  of  Ohio.'*  The  village  of  Norwood 
opened  a  street  to  the  north  and  south  lines  of  a 

1  state  V.  Newark,  37  N.  J.  L.  415.     See  Provident  Sav.  Inst.  V. 
Jersey  City,  113  U.  S.  506. 

2  Tide  Water  Co.  v.  Coster,  18  N.  J.  Eq.  518. 

3  172  U.  S.  269. 

4  Baker  v.  Norwood,   (C.  C.  A.)   74  Fed.  Rep.  997. 


250  DUE  PROCESS  OF  LAW 

cimpter  tract  of  land  owned  by  Mrs.  Baker.  In  pursuance 
of  authority  conferred  on  villages  by  the  Ohio  stat- 
utes, the  village  determined  to  connect  the  two  parts 
of  the  street  by  a  continuation  through  Mrs.  Baker's 
land  for  a  distance  of  three  hundred  feet.  The  con- 
stitution of  Ohio  provided  that  the  compensation  for 
private  property  taken  for  a  public  use  ' '  shall  be  as- 
sessed by  a  jury,  without  deduction  for  benefits  to 
any  property  of  the  owner."  The  damages  were 
assessed  at  $2,000.  The  village  council  then  passed 
an  ordinance  assessing  the  damages  and  expenses  of 
the  condemnation  proceedings  back  upon  the  prop- 
erty according  to  frontage,  which  was  one  of  the 
methods  provided  by  the  Ohio  statutes.  The  amount 
so  assessed  against  the  property  was  $2,218.58,  and 
this  was  carried  to  the  tax  lists  of  the  county  to  be 
collected  by  suit,  by  sale  of  the  land,  or  by  distraint 
of  sufficient  goods  and  chattels.  The  whole  pro- 
ceeding, which  amounted  to  charging  Mrs.  Baker 
with  the  sum  of  $218.58  for  the  privilege  of  having 
her  land  used  by  the  village  for  a  street,  was  held  to 
be  a  mere  confiscation  of  property  and  therefore 
void.  Mr.  Justice  Harlan,  who  spoke  for  the  court, 
said :  "In  our  judgment  the  exaction  from  the  own- 
er of  private  property  of  the  cost  of  a  public  im- 
provement in  substantial  excess  of  the  special  bene- 
fits accruing  to  him  is,  to  the  extent  of  such  excess, 
a  taking  under  the  guise  of  taxation  of  private 
property  for  public  use  without  compensation.  .  .  . 
As  the  pleadings  show,  the  village  proceeded  upon 
the  theory,  justified  by  the  words  of  the  statute,  that 
the  entire  cost  incurred  in  opening  the  street,  includ- 
ing the  value  of  the  property  appropriated,  could. 


DUE  PROCESS  OF  LAW  251 


when  the  assessment  was  by  the  front  foot,  be  put  Chage'^ 
upon  the  abutting  property,  irrespective  of  special 
benefits.  The  assessment  was  by  the  front  foot  and 
for  a  specific  sum  representing  such  cost,  and  that 
sum  could  not  have  been  reduced  under  the  ordi- 
nance of  the  village,  even  if  proof  had  been  made 
that  the  costs  and  expenses  assessed  upon  the  abut- 
ting property  exceeded  the  special  benefits.  The  as- 
sessment was  in  itself  an  illegal  one  because  it  rested 
upon  a  basis  that  excluded  any  consideration  of 
benefits." 

This  decision  was  widely  understood  as  establish-  tioJ'mi's- 

,  ^  understood 

ing  that  special  assessments  must  be  limited  by  the  ^^^.^^i 
benefits  conferred  and  could  not  exceed  that  limit 
and  also  as  condemning  the  front  foot  rule  when  ap- 
plied absolutely  without  providing  for  a  preliminary 
hearing  upon  benefits  conferred.'  In  truth  the  de- 
cision was  not  intended  to  establish  either  of  these 
propositions,  whatever  may  be  laid  down  therein  in 
dicta,  as  is  shown  in  a  series  of  cases  which  came 
before  the  Supreme  Court  in  1901.6  rpi^e  case  was 
said  to  have  presented  ''considerations  of  peculiar 
and  extraordinary  hardship,"  amounting  ''to  ac- 
tual confiscation  of  private  property  to  public  use, 

c  See,  for  instance,  Adams  v.  ShelbjA-ille,  154  Ind.  473,  and  cases 
cited  at  pp.  476,  477. 

6  French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324,  affirming 
158  Mo.  534;  Wight  V.  Davidson,  181  U.  S.  371,  reversing  16  App. 
Cas.  (D.  C.)  371;  Tonawanda  v.  Lyon,  181  U.  S.  389,  affirming  98 
Fed.  Rep.  361;  Webster  v.  Fargo,  181  U.  S.  394,  afftrmiug  9  N.  Dak, 
208;  Cass  Farm  Co.  V.  Detroit,  181  U.  S.  306,  affirming  124  Mich. 
433;  Detroit  v.  Parker,  181  U.  S.  399,  reversing  103  Fed.  Rep.  357; 
Wormley  v.  District  of  Columbia,  181  U.  S.  402,  affirming  15  App. 
Cas.  (D.  C.)  58;  Shumate  V.  Heman,  181  U.  S.  402,  affirming  158 
Mo.  534;  Farrell  V.  West  Chicago  Park  Com'rs,  181  U.  S.  404,  af- 
firming 182  111.  250. 


252 


DUE  PROCESS  OF  LAW 


Chapter 
VII. 


Petitioner 
for  act 
cannot  dis- 
pute its 
validity. 


and  bringing  the  case  fairly  within  the  reach  of  the 
Fourteenth  Amendment."'  In  one  of  these  cases, 
Norwood  V.  Baker  was  also  said  to  present  the  ques- 
tion of  "the  validity  of  a  village  ordinance,  which 
imposed  the  entire  cost  and  expenses  of  opening 
a  street,  irrespective  of  the  question  whether  the 
property  was  benefited  by  the  opening  of  the  street. 
The  legislature  of  the  State  had  not  defined  or 
designated  the  abutting  property  as  benefited  by 
the  improvement,  nor  had  the  village  authorities 
made  any  inquiry  into  the  question  of  benefits. 
There  having  been  no  legislative  determination  as  to 
what  lands  were  benefited,  no  inquiry  instituted 
by  the  village  councils,  and  no  opportunity  af- 
forded to  the  abutting  owner  to  be  heard  on  that 
subject,  this  court  held  that  the  exaction  from  the 
owner  of  private  property  of  the  cost  of  a  public  im- 
provement in  substantial  excess  of  the  special  bene- 
fits accruing  to  him  is,  to  the  extent  of  such  excess, 
a  taking  under  the  guise  of  taxation  of  private  prop- 
erty for  public  use  without  compensation. ' '  ^ 

The  right  to  challenge  an  assessment  as  a  denial 
of  due  process  of  law  does  not  exist  in  one  at  whose 
instance  the  assessment  was  made,  when  the  pro- 
ceedings had  were  in  strict  compliance  with  the  pro- 
visions of  the  act  passed  at  his  petition.^ 


'Tonawanda  v.  Lyon,  181  U.  S.  392;  French  v.  Barher  Asphalt 
Paving  Co.,  181  U.  S.  344;  Wight  v.  Davidson,  181  U.  S.  383;  Cass 
Farm  Co.  r.  Detroit,  181  U.  S.  398, 

8  Wight  V.  Davidson,  181  U.  S.  384.  See  also  Scott  r.  Toledo,  36 
Fed  Rep.  385,  decided  by  Mr.  Justice  Jackson  when  circuit  judge  of 
the  sixth  circuit. 

»  Shepard  v.  Barron,  194  U.  S.  553. 


E 


CHAPTER  VIII. 

THE   EMINENT   DOMAIN. 
ITS   GEN-EEAL   NATUBE    AND  LIMITATIONS. 

MINENT   DOMAIN   is   the   name   used   since    ^^^p}^'" 

the  time  of  Grotius  ^  to  express  the  power  

under  which  the  state  may  appropriate  private 
property  for  public  purposes,  upon  making,  accord- 
ing to  the  principles  of  natural  equity,  compensation 
to  the  owner.  The  power  is  the  offspring  of  politi- 
cal necessity,  and  is  inseparable  from  sovereignty, 
unless  denied  to  it  by  its  fundamental  law.^ 

Our  dual  system  of  government  recognizes  its  ex-  S"fn  ■„ 
istence  in  both  the  United  States  and  the  States,  as  tionarand 
inherent  in  each  within  its  separate  and  independent  emments. 
sphere.^    But,  while  inherent  in  both  sovereignties, 
the  eminent  domain  of  the  national  government  is 
paramount,  when  its  exercise  is  necessary  to  effec- 
tuate powers   granted   to   it  by  the    Constitution. 
''If,"  it  has  been  said,  '*it  is  necessary  that  the 
United  States  government  should  have  an  eminent 
domain  still  higher  than  that  of  the   [individual] 
State  in  order  that  it  may  fully  carry  out  the  objects 

1  1  Thayer  Cas.  Const.  Law,  945,  947 ;  Grotius,  De  Jure  Belli  et 
Pads,  lib.  iii,  c.  20,  §  7;  Gardner  v.  Newburgh,  2  Johns.  Ch.  (N.  Y.) 
162. 

2  Kohl  V.  U.  S.,  91  U.  S.  367;  Searl  v.  School  Dist.  No.  2,  133 
[J.  S.  553. 

3  Kohl  V.  U.  S.,  91  U.  S.  367. 

253 


254 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Exercis- 
able by- 
legislature. 


Grant 
creates  no 
estoppel. 


and  purposes  of  the  Constitution,  then  it  has  it. 
Whatever  may  be  the  necessities  or  conclusions  of 
theoretical  law  as  to  eminent  domain  or  anything 
else,  it  must  be  received  as  a  postulate  of  the  Con- 
stitution that  the  government  of  the  United  States 
is  invested  with  full  and  complete  power  to  execute 
and  carry  out  its  purposes. ' '  ■* 

The  eminent  domain  resides  in  the  state  and  is 
exercisable  by  the  legislative  branch  of  the  govern- 
ment. The  legislature  may,  in  its  discretion,  exer- 
cise the  power  either  directly  or  through  agents, 
authorizing  individuals  or  corporations  to  expro- 
priate private  property  when  the  public  interests 
require  such  a  course.^ 

Nor  can  its  grant  of  the  power  to  one  person  or 
set  of  persons  estop  the  state  from  again  exercising 
the  right  of  condemnation  whenever  and  as  often  as 
the  necessity  may  arise.^  ''The  only  true  rule  of 
policy  as  well  as  of  law  is  that  a  grant  for  one  public 
purpose  must  yield  to  another  more  urgent  and  im- 
portant, and  this  can  be  effected  without  any  in- 
fringement of  the  constitutional  rights  of  the  subject. 
If  in  such  cases  suitable  and  adequate  provision  is 
made  by  the  legislature  for  the  compensation  of 
those  whose  property  or  franchise   is  injured  or 


4  Stockton  V.  Baltimore,  etc.,  E.  Co.,  32  Fed.  Eep.  19,  per  Bradley, 
J.,  quoted  in  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S. 
661. 

5Secombe  r.  Milwaukee,  etc.,  R.  Co.,  23  Wall.  (U.  S.)  108;  Lom- 
bard V.  West  Chicago  Park  Com'rs,  181  U.  S.  33,  42;  Moran  V.  Ross, 
79  Cal.  159;  Day  v.  Stetson,  8  Me.  365;  Beekman  v.  Saratoga,  etc., 
R.  Co.,  3  Paige  Ch.   (N.  Y.)  45,  22  Am.  Dec.  679. 

6  West  River  Bridge  Co.  v.  Dix,  6  How.  (U.  S.)  507;  Hyde  Park 
V.  Oakwoods  Cemetery  Assoc.,  119  111.  141;  Beekman  V.  Saratoga, 
etc.,  R.  Co.,  3  Paige  (N.  Y.)  45,  22  Am.  Dec.  679. 


DUE  PROCESS  OF  LAW  255 

taken  away,  there  is  no  violation  of  public  faith  or    ^^jf^^^ 
private  right. ' '  "^ 

Constitutional  limitations  on  the  exercise  of  this  Jjons!^' 
right  demand  that  the  purpose  for  which  the  appro- 
priation is  made  must  be  a  public  purpose ;  that  the 
appropriation  be  accompanied  with  just  compensa- 
tion to  the  owner  of  the  property;  and  in  general, 
the  presence  of  notice  and  a  hearing  is  necessary  on 
judicial  questions  involved. 

THE  PUBLIC   PURPOSE  OR   USE. 

To  take  property  for  other  than  a  public  purpose ;  Necessity 
to  take,  for  instance,  the  property  of  one  citizen  and  purpose. 
transfer  it  to  another,  would  be  a  deprivation  there- 
of without  due  process  of  law;  and  such  a  proceed- 
ing is  equally  unconstitutional  when  the  appropria- 
tion is  accompanied  by  full  compensation,  as  when  it 
is  legislative  confiscation  without  compensation.^ 
For,  under  our  Constitution,  the  State  is  incapable  of 
itself  interfering  or  of  conferring  any  right  to  in- 
terfere with  private  property  unless  it  is  needed  for 
public  objects.^ 

The  determination  of  what  is  a  public  use  justify-  Jon^™!^" 
ing  appropriation  under  public   authority  belongs  legislature. 
primarily  to  the  law-making  branch  of  the  govern- 
ment; but,  since  the  Constitution  is  a  restraint  on 
the  legislature  itself,  it  devolves  upon  the  courts  to 
declare  ultimately  whether  or  not  the  appropriation 

7  Central  Bridge  Corp.  v.  Lowell,  4  Gray  (Mass.)  482,  per  Bige- 
low,  J. 

8  Missouri  Pac.  R.  Co.  r.  Nebraska,  164  U.  S.  403;  Matter  of 
Tuthill,  163  N.  Y.  133,  138 ;  Fallsburg  Power,  etc.,  Co.  v.  Alexander, 
101  Va.  98. 

9  Matter  of  Tuthill,  163  N.  Y.  133,  138;  In  re  Rhode  Island 
Suburban  R.  Co.,  22  R.  I.  455. 


256 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Supervis- 
ory power 
of  courts. 


is  for  a  public  purpose.  According  as  the  one  or 
the  other  aspect  of  the  matter  is  uppermost,  this 
question  has  been  spoken  of  sometimes  as  a  judicial, 
sometimes  as  a  legislative  one.^  In  truth,  the  mat- 
ter is  purely  legislative,  and  the  courts  merely  exer- 
cise a  supei^isory  power,  that  of  keeping  the  legis- 
lature within  constitutional  bounds.  The  legislative 
declaration  that  a  use  is  public  must  prevail,  unless 
it  appears  that  such  declaration  is  so  manifestly 
wrong  as  not  to  admit  of  a  doubt  that  the  use  is  not 
public.^ 

Various  Public  Uses  Enumerated. 

The  courts  have  not  attempted  an  exact  definition 
of  a  public  use  which  will  justify  a  taking  by  emi- 
nent domain,  but  there  are  certain  purposes  univer- 
sally conceded  to  be  within  the  rightful  exercise  of 
this  power.     Private  property  may  be  expropriated 

1  In  some  States  (Colorado,  Missouri,  Washington)  there  is  a 
constitutional  provision  that  the  question  is  a  judicial  one  to  be 
determined  *'  without  regard  to  any  legislative  assertion  that  the  use 
is  public."  Savannah  V.  Hancock,  91  Mo.  54;  Healy  Lumber  Co.  v. 
Morris,  33  Wash.  490. 

2U.  S.  V.  Gettysburg  Electric  R.  Co.,  160  U.  S.  668,  680;  Tuttle 
V.  Moore,  3  Indian  Ter.  712,  729;  Hazen  v.  Essex  County,  12  Cush. 
(Mass.)  477;  Varner  v.  Martin,  21  W.  Va.  534;  Chicago,  etc.,  R. 
Co.  V.  Morehouse,  112  Wis.  1. 

"  In  such  cases  [the  exercise  by  the  legislature  of  the  taxing 
power,  eminent  domain,  or  the  police  power]  it  is  always  to  be 
remembered  that  the  judicial  question  is  a  secondary  one.  The  legis- 
lature, in  determining  what  shall  be  done,  what  it  is  reasonable  to 
do,  does  not  divide  its  duty  with  the  judges,  nor  must  it  conform 
to  their  conception  of  what  is  prudent  or  reasonable  legislation.  The 
judicial  function  is  merely  that  of  fixing  the  outside  border  of  reason- 
able legislative  action,  the  boundary  beyond  which  the  taxing  power, 
the  power  of  eminent  domain,  police  power,  and  legislative  power  in 
general  cannot  go  without  violating  the  prohibitions  of  the  Consti- 
tution, or  crossing  the  line  of  its  grants."  Prof.  James  B.  Thayer, 
American  Doctrine  of  Constitutional  Law,  7  Harv.  L.  Rev.  148. 


DUE  PROCESS  OF  LAW  257 


when  its  acquisition  is  necessary  to  tlie  acknowledged    Chapter 
activities  of  tlie  government,  whether  exerted  by  the 


VIII. 


State  itself,  by  a  department  thereof,  or  by  the  local  Kcon/ 
governments  of  counties  or  municipalities.  With- 
in this  class  falls  condemnation  of  property  for 
forts,  aiinories,  arsenals,  navy  yards,  light  houses, 
custom  houses,  court  houses,  post  offices,^  the  es- 
tablishment of  public  alms-houses,^  public  schools,' 
and  similar  enterprises.  The  construction  and  im- 
provement of  public  highways  and  means  of  inter- 
communication are  public  purposes  ^  and  the  power 
of  eminent  domain  may  be  exerted  for  public  high- 
ways,^ turnpikes,^  railways,^  canals,^  and  for  tele- 
graphs and  telephones,^  as  well  as  for  bridges  and 

3  Kohl  V.  U.  S.,  91  U.  S.  367;  Ft.  Leavenworth  R.  Co.  v.  Lowe,  114 
U.  S.  525;  Chappell  v.  U.  S.,  160  U.  S.  499,  509,  510. 

4  Hey  ward  v.  New  York,  7  N.  Y.  314,  affirming  8  Barb.  (N.  Y.) 
486. 

5  Long  V.  Fuller,  68  Pa.  St.  170;  Williams  v.  School  Dist.  No.  6, 
33  Vt.  271. 

6  "  In  every  form  of  government  the  duty  of  providing  public  ways 
is  acknowledged  to  be  a  public  duty."  Matter  of  Niagara  Falls,  etc., 
R.  Co.,  108  N.  Y.  375,  385. 

7  Lewis  on  Em.  Etom.   166. 

"  The  public  necessity  and  convenience  have  always  indicated 
highways  as  one  of  the  objects  for  which  the  state  might  take  private 
property."     Dronberger  v.  Reed,  11  Ind.  420,  422. 

8  State  V.  Maine,  27  Conn.  641. 

sSecombe  v.  Milwaukee,  etc.,  R.  Co.,  23  Wall.  (U.  S.)  108;  Cher- 
okee Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S.  641,  657;  Bona- 
parte V.  Camden,  etc.,  R.  Co.,  Baldw.  (U.  S.)  205;  People  v.  Town- 
ship Board,  20  Mich.  452,  477,  4  Am.  Rep.  400;  Beekman  v.  Saratoga, 
etc.,  R.  Co.,  3  Paige  (N.  Y.)  45,  73,  74,  22  Am.  Dec.  679. 

1  Chesapeake,  etc.,  Canal  Co.  v.  Key,  3  Cranch  (C.  C.)  599;  Will- 
yard  V.  Hamilton,  7  Ohio  (pt.  li)   111,  30  Am.  Dec.  195. 

2  Lewis,  Em.  Dom.  172;  Trenton,  etc.,  Turnpike  Co.  v.  American, 
etc.,  News  Co.,  43  N.  J.  L.  381;  State  v.  Central  New  Jersey  Tele- 
phone Co.,  53  N.  J.  L.  341. 

The  right  of  eminent  domain  was  not  granted  to  telegraph  com- 

17 


258  DUE  PROCESS  OF  LAW 


Chapter    ferries,^  wharves  and  landings,^  booms  for  floating 
logs  on  streams,^  and  structures  necessary  in  con- 
nection with  improved  highways,  such  as  depots,® 
repair  shops,'^  stock  yards,^  etc. 
Matters  Auothcr  class  of  cases  includes  measures  of  police 

of  police.  ^ 

control,  especially  those   designed  to  promote  the 

panies  by  the  Act  of  Congress,  which  allowed  them  to  construct  lines 
through  the  public  domain  and  over  the  military  and  post  roads  of 
the  United  States.  Eev.  Stat.  U.  S.,  §  5263  et  seq. ;  7  Fed.  Stat. 
Annot.  205.  Western  Union  Tel.  Co.  f.  Pennsylvania  P.  Co.,  195 
U.  S.  540. 

3  Lewis,  Em.  Dom.  168 ;  Arnold  v.  Covington,  etc..  Bridge  Co.,  1 
Duval  (Ky.)  372;  Day  r.  Stetson,  8  Me.  365  (ferry)  ;  Southern  Illi- 
nois, etc.,  Bridge  Co.  v.  Stone,  174  Mo.  1   (toll  bridge). 

4Kingsland  v.  New  York,  110  N.  Y.  569;  Matter  of  New  York, 
135  N.  Y.  253;   Pittsburgh  v.  Scott,   1  Pa.  St.  309. 

5  Lawler  v.  Baring  Boom  Co.,  56  Me.  443 ;  Cotton  V.  Mississippi, 
etc..  Boom  Co.,  22  Minn.  372;  Henly  Lumber  Co.  V.  Morris,  33  Wash. 
490,  503,  distinguishing  boom  companies  organized  to  do  a  carrying 
business  for  the  public,  from  private  logging  companies.  Compare 
Brewster    v.  J.  &  J.  Rogers  Co.,  169  N.  Y.  73. 

6 "  If  lands  are  required  for  any  of  the  purposes  of  the  incor- 
poration, or  for  the  purpose  of  operating  and  running  the  road, 
that  is,  in  the  proper  enjoyment  and  exercise  of  the  franchise  con- 
ferred and  in  the  performance  of  the  service  to  the  public  assumed 
by  it,  they  may  be  taken  in  invitum.  The  only  limit  to  the  power 
is  the  reasonable  necessity  of  the  corporation  in  the  discharge  of  its 
duty  to  the  public.  Tlie  right  to  take  lands  upon  which  to  erect  a 
manufactory  of  cars  or  dwellings  for  operatives,  is  not  included  in 
the  grant.  Such  purposes  are  not  legitimately  and  necessarily  con- 
nected with  the  management,  the  running  and  operating  of  the  rail- 
road. .  .  .  But  passenger  depots,  convenient  and  proper  places 
for  the  storing  and  keeping  cars  and  locomotives  when  not  in  use, 
proper,  secure,  and  convenient  places  having  reference  to  the  public 
interests  to  be  subserved,  for  the  receipt  and  delivery  of  freight,  and 
for  the  safe  and  secure  keeping  of  property  between  the  time  of  its 
receipt  and  despatch,  or  after  its  arrival  and  discharge  and  before 
its  removal  by  the  owner  or  consignee,  are  among  the  acknowledged 
necessities  for  the  running  and  operating  the  railroad,  to  the  proper 
prosecution  of  the  business  in  the  interests  of  the  public."  New 
York,  etc.,  R.  Co.  v.  Kip,  46  N.  Y.  546,  552. 

7  Chicago,  etc.,  R.  Co.  r.  Wilson,  17  111.  123. 

8  Covington  Stock- Yards  Co.  v.  Keith,   139  U.  S.   128. 


Great 
public 
interests. 


DUE  PROCESS  OF  LAW  259 

public  health.     Such  are  statutes  employing  the  emi-    ^}^Yn" 

nent  domain  to  secure  the  drainage  of  cities,^  or  of  

swampy  districts,^  the  procuring  of  a  pure  water 
supply  for  cities,^  the  establishment  of  public  ceme- 
teries,^  the  abating  of  great  public  nuisances/  the 
establishment  of  public  markets,^  and  the  like. 

Still  other  cases  arise  when  great  public  interests,  J^^fj'^ 
as  irrigation  in  arid  districts  ^  and  the  construction 
of  dikes  and  levees  in  areas  subject  to  overflow,'^  or 
public  convenience,  such  as  supply  of  gas  to  munici- 
palities,^ have  been  held  to  warrant  the  expropriation 

» Leeds  v.  Eichmond,  102  Ind.  372,  376;  Kingman,  Petitioner, 
153  Mass.  566;  Stoudinger  V.  Newark,  28  N.  J.  Eq.  187,  and  note 
by  reporter.  The  power  in  cities  to  construct  sewers  may  be  put  on 
the  city's  right  to  maintain  streets. 

iManigault  V.  Springs,  199  U.  S.  473;  Elmore  v.  Drainage 
Com'rs,  135  111.  269,  25  Am.  St.  Rep.  363;  Anderson  V.  Kerns  Drain- 
ing Co.,  14  Ind.  199,  77  Am.  Dec.  63 ;  Matter  of  Ryers,  72  N.  Y.  1 , 
28  Am.  Rep.  88;  State  v.  Stewart,  74  Wis.  620.  These  cases  place 
the  right  only  on  the  ground  of  public  health.  See  also  Heflfner  V. 
Cass  County,  193  111.  439;  State  V.  Polk  County,  87  Minn.  325; 
Mound  City  Land,  etc.,  Co.  v.  Miller,  170  Mo.  240. 

2U.  S.  V.  Great  Falls  Mfg.  Co.,  112  U.  S.  645;  Long  Island 
Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685;  Burden  v.  Stein,  27 
Ala.  104,  62  Am.  Dec.  758;  Lynch  V.  Forbes,  161  Mass.  302,  42  Am. 
St.  Rep.  402;  Gardner  V.  Newburgh,  2  Johns,  Ch,  (N.Y.)  162,  7  Am. 
Dec.  528;  Stearns  v.  Barre,  73  Vt.  281, 

3  Edwards  v.  Stonington  Cemetery  Assoc,  20  Conn.  466 ;  Balch  v. 
Essex  County,  103  Mass.  106;  Edgecumbe  v.  Burlington,  46  Vt.  218. 

"  The  safety  of  the  living  requires  the  burial  of  the  dead  in 
proper  time  and  place."  Evergreen  Cemetery  Assoc,  v.  Beecher,  53 
Conn.  551.     But  see  infra,  p.  264. 

4  Sweet  V.  Reehel,  159  U.  S.  380;  Dingley  v.  Boston,  100  Mass. 
544. 

B  Henkel  v.  Detroit,  49  Mich.  249. 

e  Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112. 

T  Columbia  Bottom  Levee  Co.  v.  Meier,  39  Mo.  53,  57;  Coster  V. 
Tide  Water  Co.,  18  N.  J.  Eq.  54,  518. 

8  Brunswick  Gas  Light  Co.  v.  United  Gas,  etc.,  Co.,  85  Me.  532, 
35  Am.  St.  Rep.  385;  Stockton  v.  Central  R.  Co.,  50  N".  J.  Eq.  52; 
Bloomfield,  etc.,  Natural  Gas  Light  Co.  v.  Richardson,  63  Barb. 
(N.  Y.)  437. 


260  DUE  PROCESS  OF  LAW 


Chapter    of  private  property.    The  construction  of  parks  for 

—   the  use  of  the  public  for  rest  and  exercise  in  the  open 

air  is  a  public  pur]_)Ose  authorizing  the  employment 
of  eminent  domain.^  The  preservation  of  the  site 
of  the  battle  of  Gettysburg  and  the  marking  out  of 
the  positions  of  the  various  commands  upon  the 
battlefield  has  been  held  such  a  public  purpose  as 
warrants  the  condemnation  of  lands  for  these  ends. 
^'Any  Act  of  Congress  which  plainly  and  directly 
tends  to  enhance  the  respect  and  love  of  the  citizen 
for  the  institutions  of  his  country,  and  to  quicken 
and  strengthen  his  motives  to  defend  them,  and 
which  is  germane  to,  and  intimately  connected  with 
and  appropriate  to,  the  exercise  of  some  one  or  all  of 
the  powers  granted  by  Congi-ess,  must  be  valid. 
This  proposed  use  comes  within  such  description. 
.  .  .  Such  a  use  seems  necessarily  not  only  a  pub- 
lic use,  but  one  so  closely  connected  with  the  welfare 
of  the  republic  itself  as  to  be  within  the  powers 
granted  Congress  by  the  Constitution  for  the  pur- 
pose of  protecting  and  preserving  the  whole  country. 
.  .  .  No  narrow  view  of  the  character  of  this  pro- 
posed use  should  be  taken.  Its  national  character 
and  importance,  we  think,  are  plain.  The  power  to 
condemn  for  this  purpose  need  not  be  plainly  and 
unmistakably  deduced  from  any  one  of  the  particu- 
larly specified  powers.  Any  number  of  those  pow- 
ers may  be  grouped  together  and  an  inference  from 
them  all  may  be  drawn  that  the  power  claimed  has 
been  conferred.  It  is  needless  to  enlarge  upon  the 
subject,  and  the  determination  is  arrived  at  without 

» Shoemaker  v.  U.  S.,   147  U.  S.  282;   Wilson  v.  Lambert,   168 

u.  s.  en. 


DUE  PROCESS  OF  LAW  261 

hesitation,  that  the  use  intended,  as  set  forth  in  the    ^y^ljj^'^ 

petition  in  this  proceeding,  is  of  that  public  nature  

which  comes  within  the  constitutional  power  of  Con- 
gress to  provide  for  by  the  condemnation  of  land. ' '  ^ 

Purposes  purely  aesthetic  have  been  held  to  war-  ^fpSes. 
rant  condemnation  under  the  power  of  eminent  do- 
main. In  a  recent  Massachusetts  case,  an  act  of  the 
legislature  forbidding  the  erection  of  any  house 
around  a  park  or  square  in  the  city  of  Boston,  known 
as  Copley  Square,  to  a  height  greater  than  ninety 
feet,  and  providing  compensation  for  all  persons 
damaged  by  the  limitation  prescribed  for  the  height 
of  buildings,  was  sustained  as  a  valid  exercise  of  the 
power  of  eminent  domain,  ''for  the  benefit  of  the 
public  who  use  Copley  Square."  "The  uses  which 
should  be  deemed  public  in  reference  to  the  right  of 
the  legislature  to  compel  an  individual  to  part  with 
his  property  for  a  compensation  and  to  authorize  or 
direct  taxation  to  pay  for  it,"  said  the  court,  "are 
being  enlarged  and  extended  with  the  progress  of 
the  people  in  education  and  refinement."  Public 
parks  are  beautified  "by  such  touches  of  art  as  help 
to  produce  pleasing  and  satisfactory  effects  on  the 
emotional  and  spiritual  side  of  our  nature.  .  .  . 
It  hardly  would  be  contended  that  the  same  reasons 
which  justify  the  taking  of  land  for  a  public  park 
do  not  also  justify  the  expenditure  of  money  to  make 
the  park  attractive  and  educational  to  those  whose 
tastes  are  being  formed  and  whose  love  of  beauty  is 
being  cultivated."  The  statute  was  passed  for  the 
benefit  of  the  public,  by  "seeking  to  promote  the 
beauty  and  attractiveness  of  a  public  park  in  the 

1 U.  S.  V.  Gettysburg  Electric  R.  Co.,  160  U.  S.  668. 


262  DUE  PROCESS  OF  LAW 

Chapter    capital  of  the  commonwealtli,  and  to  prevent  unrea- 

'—  sonable  encroachments  upon  the  light  and  air  which 

it  had  previously  received, ' '  and  the  court  could  ' '  not 
say  that  this  was  not  a  matter  of  such  public  interest 
as  to  call  for  an  expenditure  of  public  money  and  to 
justify  the  taking  of  private  property."  ^ 

The  Criterion  of  a  Public  Use. 
Divergent  Most  of  tlic  various  cases  enumerated  are  alike  in 

views 

Stated.  certain  particulars.  Either  the  State  has  a  direct 
property  in  the  improvement  (custom  houses,  court 
houses,  and  the  like) ;  or  the  title,  when  in  private 
persons,  is  impressed  with  a  trust  in  favor  either  of 
the  whole  public,  entitling  every  citizen  to  use  the 
property  on  the  same  terms  for  the  same  facilities 
(railroads,  canals,  highways),  or  entitling  to  its  use 
every  citizen  within  the  range  and  objects  of  the 
improvement  (municipal  waterworks,  irrigation  dis- 
tricts, etc.).  These  characteristics  are,  according  to 
one  and  perhaps  the  most  common  view,  considered 
necessary  to  constitute  a  public  use,  to  be  the  cri- 
teria by  which  its  existence  is  tried.  The  State, 
when  the  public  use  is  not  a  governmental  use  di- 
rectly administered,  must  have  a  voice  in  the  man- 
ner in  which  the  public  may  avail  itself  thereof ;  the 
undertaking  must  be  under  public  control  and  inde- 
pendent of  the  will  of  the  person  or  corporation  in 
whom  the  title  by  condemnation  will  be  vested,  so 
that  the  public  interest  can  not  be  defeated  or  the 
entire  enterprise  abandoned  at  the  will  or  caprice 
of  the  proprietors.^     But  some  courts  give  to  the 

2  Atty.-Gen.  v.  Williams,  174  Mass.  476,  affirmed  st(b.  vom.  Wil- 
liams V.  Parker,  188  U.  S.  491. 

8  Board  of  Health  v.  Van  Hoesen,  87  Mich.  533;   Bloodgood  v. 


DUE  PROCESS  OF  LAW  263 

term  ''public  use'^  a  wider  meaning  and  hold  that    ^yj?j^^ 

no  use  which  is  clearly  for  the  benefit  of  the  public  • 

and  which  the  legislature  has  declared  to  be  a  public 
use  can  by  the  courts  be  declared  not  a  public  use, 
although  the  title  to  the  property  taken  is  vested  in 
individuals  as  strictly  private  property.^  On  the  one 
hand  it  is  said  that  ''public  use"  is  equivalent  to 
"public  benefit,"  and  when  a  marked  public  benefit 
arises  to  the  community,  it  is  not  within  the  judicial 
competence  to  declare  that  benefit  beyond  the  help 
of  the  State 's  power  of  eminent  domain ;  on  the  oth- 
er hand  it  is  declared  that  "public  use"  and  "pub- 
lic benefit"  are  not  synonymous  and  that  incidental 
benefit  to  the  public,  however  great,  is  not  the  cri- 
terion."^ 

Mohawk,  etc.,  R.  Co.,  18  Wend  (N.  Y.)  9,  31  Am.  Dec.  313;  Matter 
of  Tuthill,  163  N.  Y.  133;  Matter  of  Deansville  Cemetery  Assoc,  66 
N.  Y.  569;  Fallsburg  Power,  etc.,  Co.  v.  Alexander,  101  Va.  98; 
Healy  Lumber  Co.  v.  Morris,  33  Wash.  490. 

4  01mstead  v.  Camp,  33  Conn.  532,  89  Am.  Dee.  221;  Talbot  V. 
Hudson,  16  Gray  (Mass.)  417;  Dayton  Gold,  etc.,  Min.  Co.  v.  Sea- 
well,  11  Nev.  394;  Chicago,  etc.,  R.  Co.  v.  Morehouse,  112  Wis.  1,  56 
L.  R.  A.  240. 

This  view  has  been  held  to  authorize  the  appropriation  of  un- 
improved lands  by  the  national  government  to  be  sold  in  town  lots  in 
accordance  with  a  general  town  lot  scheme.  Tuttle  v.  Moore,  3  In- 
dian Ter.  712. 

5  When  the  question  is  reduced  to  its  ultimate  elements,  it  appears 
that  the  former  view  is  theoretically  correct.     See  supra,  p.  256,  note  2. 

The  view  that  possession  or  control  by  the  government  is  essen- 
tial Avas  adopted  by  the  courts  because  it  made  easier  the  perform- 
ance of  a  difficult  duty  (see  Bloodgood  V.  Mohawk,  etc.,  R.  Co.,  18 
Wend.  (N.  Y.)  9,  31  Am.  Dec.  313),  and  in  accordance  with  the 
tendency  of  judges  to  establish  rules  which  are  definite  (Dicey,  Law 
and  Opinion,  364).  But  the  difficulty  of  a  judicial  duty  is  no  reason 
for  avoiding  it,  and  the  reason  for  preferring  a  definite  rule,  which 
may  be  changed  by  legislation  if  it  works  hardships,  fails  where 
the  rule  involves  a   limitation   on  the  power  of  the  legislature. 

It  has  been  argued  with  force  that  the  rule  which  makes  "  public 
use  "  synonymous  with  "  public  benefit "  is  less  liable  to  abuse  than 


264  DUE  PROCESS  OF  LAW 

Chapter  This  difference  of  view  is  manifested  in  a  number 

of  cases.     Typical   are  the   so-called   general   mill 

Instsriccs 

—  mill        acts,  statutes  authorizing  lands  to  be  taken  or  flowed 

acts,  etc.  ...  . 

in  invitum  for  the  erection  and  maintenance  of  mills, 
and  statutes  authorizing  the  taking  of  property  for 
private  manufacturing  purposes.  Such  statutes 
have  been  sustained  or  declared  unconstitutional  as 
the  eminent  domain  was  held  exercisable  for  any  ob- 
ject of  public  benefit,*^  or  limited  to  purposes  within 
the  State  control.'^  Or,  the  right  of  condemnation 
has  been  sustained  only  for  mills  required  to  grind 
for  all  persons  for  a  toll  fixed  by  law.^  Upon  the 
same  principles,  the  power  to  condemn  lands  for  pri- 
vate roads  has  been  denied  ^  or  recognized,^  and 
laws  authorizing  the  formation  of  cemetery  associa- 
tions and  the  condemnation  of  lands  for  cemeteries, 
the  title  to  the  lands  to  be  in  the  association  with  a 

that  which  demands  State  ownership  and  control.  See  the  remarks 
of  Hawley,  C.  J.,  in  Dayton  Gold,  etc.,  Min.  Co.  v.  Sea  well,  11  Nev. 
394,  410. 

6  Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9;  Olmstead  v.  Camp, 
33  Conn.  532,  89  Am.  Dee.  221;  Scudder  v.  Trenton  Delaware  Falls 
Co.,  1  N.  J.  Eq.  694,  23  Am.  Dec.  756. 

7Gaylord  v.  Sanitary  Dist.,  204  111.  576;  Ryerson  v.  Brown,  35 
Mich.  333;  Avery  v.  Vermont  Electric  Co.,  75  Vt.  235;  Fallsburg 
Power,  etc.,  Co.  v.  Alexander,  101  Va.  98;  Varner  v.  Martin,  21  W. 
Va.  534;  Healy  Lumber  Co.  v.  Morris,  33  Wash.  490. 

8  Bottoms  V.  Brewer,  54  Ala.  288 ;  Tyler  V.  Beacher,  44  Vt.  648 , 
8  Am.  Rep.  398;  Varner  v.  Martin,  21  W.  Va.  534,  559. 

» Logan  I'.  Stogsdale,  123  Ind.  372;  Underwood  v.  Bailey,  59 
N.  H.  480;  Taylor  V.  Porter,  4  Hill  (N.  Y.)  140;  Varner  v.  Martin, 
21  W.  Va.  534;  Healy  Lumber  Co.  V.  Morris,  33  Wash.  490. 

1  Brewer  v.  Bowman,  9  Ga.  37,  40;  Harvey  v.  Thomas,  10  Watts 
(Pa.)  63;  In  re  Road  in  Plumcreek  Tp.,  110  Pa.  St.  544. 

In  cases  where  the  owner  of  land  is  excluded  from  any  public 
highway,  the  road  giving  him  an  outlet  and  enabling  him  to  per- 
form his  public  duties  is  a  highway  and  of  public  utility.  Johnson 
V.  Clayton  County,  61  Iowa  89.  And  see  Nelson,  Ch.  J.,  dissenting, 
in  Taylor  v.  Porter,  4  Hill   (N.  Y.)   140,  148. 


DUE  PROCESS  OF  LAW  265 


right  ou  the  part  of  citizens  to  purchase  burial  lots    ^^^Pj^^ 

at  prices  fixed  by  the  association,  have  been  held  

constitutional  in  some  States,^  unconstitutional  in 
others.^ 

Acts  permitting  the  drainage  of  large,  swampy  f/tli"^^^ 
areas  and  the  condemnation  of  land  therefor,  have 
been  universally  sustained  when  the  drainage  is  for 
the  promotion  of  public  health,^  but  their  constitu- 
tionality has  been  denied  when  the  advantage  ac- 
crues merely  to  the  property  owners  by  rendering 
their  land  more  productive.^  Drainage  acts  have 
been  held  to  be  constitutional,  however,  as  within 
the  general  legislative  power,  independently  of  any 
effect  upon  the  public  health,  or  of  any  reference  to 
either  the  eminent  domain  or  the  taxing  power,^ 
"as  a  just  and  constitutional  exercise  of  the  power 
of  the  legislature  to  establish  regulations  by  which 
adjoining  lands,  held  by  various  owners  in  several- 
ty, and  in  the  improvement  of  which  all  have  a  com- 
mon interest,  but  which,  by  reason  of  the  peculiar 
natural  condition  of  the  whole  tract,  can  not  be  im- 
proved br  enjoyed  by  any  of  them  without  the  con- 

2  Evergreen  Cemetery  Assoc,  v.  Beecher,  53  Conn.  551. 

3  Board  of  Health  v.  Van  Hoesen,  87  Mich.  533;  Matter  of  Deans- 
ville  Cemetery  Assoc,  66  N.  Y.  569, 

4  See  supra,  p.  259. 

5  Matter  of  Ryers,  72  N.  Y.  1,  6,  28  Am.  Rep.  88,  citing  Gilbert 
r.  Foote,  (N.  Y.  Ct.  App.)  unreported;  Matter  of  Tuthill,  163  N.  Y. 
133. 

eWurts  V.  Hoagland,  114  U.  S.  606,  614.  See  Mound  City  Land, 
etc.,  Co.  V.  Miller,  170  Mo.  240. 

This  view  had  its  origin  in  Massachusetts,  where  it  is  fully  stated 
and  developed  in  Lowell  V.  Boston,  111  Mass.  454,  15  Am.  Rep.  39. 
It  was  adopted  in  the  United  States  Supreme  Court  in  the  opinions 
in  the  case  above  cited,  and  Head  r.  Amoskeag  Mfg.  Co.,  113  U.  S.  9, 
both  of  which  were  written  by  Mr.  Justice  Gray,  previously  chief 
justice  of  Massachusetts. 


266 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Irrigation. 


Federal 

Supreme 

Court 

considers 

peculiar 

conditions 

of  State. 


currence  of  all,  may  be  reclaimed  and  made  useful 
to  all  at  their  joint  expense;"^  ''making  equitable 
compensation  to  any  whose  control  of  or  interest  in 
the  property  is  thereby  modified."^  So  far  as  the 
necessity  of  compensation  is  recognized,  these  acts 
would  seem  to  be  a  true  exercise  of  eminent  domain 
for  a  public  purpose,  though  the  taxing  power  is 
also  involved  in  the  assessment  on  the  owners. 

The  same  principle  has  been  invoked  to  sustain 
the  decision  that  irrigation  was  a  public  use.^ 

In  determining  what  is  a  public  use,  the  United 
States  Supreme  Court  has  recognized  that  much  de- 
pends upon  condition  of  the  State,  whose  eminent 
domain  is  sought  to  be  employed,  the  facts  surround- 
ing the  subject,  matters  of  climate  and  soil,  and  the 
condition  of  population.  Thus,  in  the  arid  climate 
of  Utah,  a  statute  allowing  a  landowner  to  condemn 
a  right  of  way  over  another's  land  for  a  ditch  to 
irrigate  his  private  property  has  been  sustained 
on  the  ground  that  the  condemnation  was,  under  the 
circumstances,  for  a  public  use.  The  court  said: 
"Whether  a  statute  of  a  State  permitting  condem- 
nation by  an  individual  for  the  purpose  of  obtaining 
water  for  his  land  or  for  mining  should  be  held  to 
be  a  condemnation  for  a  public  use,  and,  therefore, 
a  valid  enactment,  may  depend  upon  a  number  of 
considerations  relating  to  the  situation  of  the  State 
and  its  possibilities  for  land  cultivation,  or  the  suc- 
cessful prosecution  of  its  mining  or  other  industries. 
Where  the  use  is  asserted  to  be  public,  and  the  right 


7Wurts  V.  Hoajrland.  114  U.  S.  606,  614. 
8  Head  v.  Amosken^  MUr.  Co.,  11.3  U.  S.  9,  21,  22. 
eFallbrook  Irriiration  Dist.  v.  Bradley,   164  IT.  S.   112,  163. 
also  Turlock  Irrigation  Dist.  v.  Williams,  76  Cal.  360. 


See 


DUE  PROCESS  OF  LAW  267 


of  the  individual  to  condemn  land  for  the  purpose    ^hap^^r 

of  exercising  such  use  is  founded  upon  or  is  the  re-  

suit  of  some  peculiar  condition  of  the  soil  or  climate, 
or  other  peculiarity  of  the  State,  where  the  right  of 
condemnation  is  asserted  under  a  State  statute,  we 
are  always,  where  it  can  fairly  be  done,  strongly  in- 
clined to  hold  with  the  State  courts,  when  they  up- 
hold a  State  statute  providing  for  such  condemna- 
tion. The  validity  of  such  statutes  may  sometimes 
depend  upon  many  different  facts,  the  existence  of 
which  would  make  a  public  use,  even  by  an  indi- 
vidual, where,  in  the  absence  of  such  facts,  the  use 
would  clearly  be  private.  Those  facts  must  be  gen- 
eral, notorious,  and  acknowledged  in  the  State,  and 
the  State  courts  may  be  assumed  to  be  exceptionally 
familiar  with  them.  They  are  not  the  subject  of  ju- 
dicial investigation  as  to  their  existence,  but  the  local 
courts  know  and  appreciate  them.  They  understand 
the  situation  which  led  to  the  demand  for  the  enact- 
ment of  the  statute,  and  they  also  appreciate  the  re- 
sults upon  the  growth  and  prosperity  of  the  State 
which,  in  all  probability,  would  flow  from  a  denial  of 
its  validity.  These  are  matters  which  might  prop- 
erly be  held  to  have  a  material  bearing  upon  the 
question  whether  the  individual  use  proposed  might 
not  in  fact  be  a  public  one.  It  is  not  alone  the  fact 
that  the  land  is  arid  and  that  it  will  bear  crops  if 
irrigated,  or  that  the  water  is  necessary  for  the  pur- 
pose of  working  a  mine,  that  is  material ;  other  facts 
might  exist  which  are  also  material — such  as  the 
particular  manner  in  which  the  irrigation  is  carried 
on  or  proposed,  or  how  the  mining  is  to  be  done  in  a 
particular  place  where  water  is  needed  for  that  pur- 


Utah. 


268  DUE  PROCESS  OF  LAW 

Chapter    pose.     The  general  situation  and  amount  of  the  arid 
land  or  of  the  mines  themselves  might  also  be  mate- 
rial and  what  proportion  of  the  water  each  owner 
should  be  entitled  to;   also  the  extent  of  the  popu- 
lation   living    in    the    surrounding    country,    and 
whether  each  owner  of  land  or  mines  could  be,  in 
fact,   furnished  with   the   necessary  water   in   any 
other  way  than  by  the  condemnation  in  his  own  be- 
half, and  not  by  a  company,  for  his  use  and  that  of 
others.     .     .     . 
duchfs'—  "We  are,  however,  as  we  have  said,  disposed  to 
agree  with  the  Utah  court  with  regard  to  the  validity 
of  the  State  statute  which  provides,  under  the  cir- 
cumstances stated  in  the  Act,  for  the  condemnation 
of  the  land  of  one  individual  for  the  purpose  of  al- 
lowing another  individual  to  obtain  water  from  a 
stream   in   which  he  has    an  interest,   to   irrigate 
his  land,  which  otherwise  would  remain  absolutely 
valueless.    But  we  do  not  desire  to  be  understood  by 
this  decision  as  approving  of  the  broad  proposition 
that  private  property  may  be  taken  in  all  cases  where 
the  taking  may  promote  the  public  interest  and  tend 
to  develop  the  natural  resources  of  the  State.    We 
simply  say  that  in  this  particular  case,  and  upon 
the  facts  stated  in  the  findings  of  the  court,  and 
having  reference  to  the  conditions  already  stated,  we 
are  of  opinion  that  the  use  is  a  public  one,  although 
the  taking  of  the  right  of  way  is  for  the  purpose 
simply  of  thereby  obtaining  the  water  for  an  indi- 
vidual, where  it  is  absolutely  necessary  to  enable 
him  to  make  any  use  whatever  of  his  land,  and  which 
will  be  valuable  and  fertile  only  if  water  can  be 
obtained.    .    .    . 


DUE  PROCESS  OF  LAW  269 


''The  risrlits  of  a  riparian  owner  in  and  to  the    Chapter 

^  ^  VIII. 


use  of  the  water  flowing  by  his  land  are  not  the  same 
in  the  arid  and  mountainous  States  of  the  West  that  ?/ 5^6^ 
they  are  in  the  States  of  the  East.    .    .    .    This  court  recognized, 
must  recognize  the  differences  of  climate  and  soil, 
which  render  necessary  these  different  laws  in  the 
States  so  situated."  ^ 

But  whatever  the  view  as  to  the  test  of  a  public  f^j^oVnfig^ 
use,  the  courts  are  united  on  the  proposition  that  t°on''not' 
the  power  of  eminent  domain  does  not  justify  a  purpose."^ 
taking  for  private  purposes  merely,  as  when  prop- 
erty is  transferred  from  one  person  to  another,  or 
to  several  persons  for  their  peculiar  benefit  and  ad- 
vantage, even  though  compensation  is  provided  for.^ 
Nor  does  it  justify  a  taking  for  subsidiary  enter- 
prises connected  with  but  not  necessary  for  an  ad- 
mitted public  purpose.^  In  the  last  case,  the  ques- 
tion is  the  connection  between  the  subsidiary  and 
the  main  object  to  be  attained,  and  the  decisions  are 
frequently  at  variance.  ''Spur  tracks,"  from  rail- 
roads to  business  establishments,  for  instance,  are 
sometimes  held  to  be  essential  to  the  railroad's  busi- 
ness and  so  to  warrant  the  exercise  of  eminent  do- 
main,^ sometimes  to  be  unnecessary  and  a  taking  of 

1  Clark  V.  Nash,    198  U.   S.   361. 

2  Missouri  Pac.  R.  Co.  V.  Nebraska,  164  U.  S.  403  (grain  elevator 
of  private  individuals)  ;  Evergreen  Cemetery  Assoc.  V.  Beecher,  53 
Conn.  551;  Talbot  V.  Hudson,  16  Gray  (Mass.)  417;  Chicago,  etc., 
R.  Co.  V.  State,  50  Neb.  399   (private  grain  elevator). 

3  New  York,  etc.,  R.  Co.  V.  Kip,  46  N.  Y.  546.  7  Am.  Rep.  385 
(car  factories  and  houses  for  employees). 

"  The  need  of  the  land  sought  in  aid  of  collateral  enterprises,  re- 
motely connected  with  the  running  or  operating  of  the  [rail]  road, 
will  not  justify  an  assertion  of  the  right  of  eminent  domain."  Mat- 
ter of  Rochester,  etc.,  110  N.  Y.  119. 

4  See  Chicago,  etc.,  R.  Co.  v.  Morehouse,  112  Wis.  1,  88  Am.  St. 


270 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


State  may 
use  expro- 
priated 
property 
for  inci- 
dental 
profit. 


Incidental 
private 
benefit  not 
fatal. 


property  therefor  a  taking  without  due  process  of 
law.^ 

While  the  raising  of  revenue  is  not  a  public  pur- 
pose which  will  justify  the  taking  of  private  prop- 
erty by  the  State,  yet  when  property  has  been  ac- 
quired by  the  State  for  a  legitimate  public  purpose, 
and  the  works  constructed  for  the  end  in  view  are  in- 
cidentally capable  of  valuable  uses  and  may  be  made 
a  source  of  revenue,  their  emplojanent  for  this  ob- 
ject is  not  a  subject  of  complaint.*^  Thus  where,  in 
improving  the  navigability  of  a  stream,  it  was  nec- 
essary to  construct  a  dam  and  a  canal  to  avoid  a 
rapids  in  the  stream,  the  surplus  water  power  may 
be  rented  by  the  State,  and  a  riparian  proprietor, 
though  cut  off  from  the  use  of  the  power,  has  not 
been  deprived  of  his  property.  But  the  erection  of 
the  dam  must  have  been  bona  fide  and  to  improve 
navigation,  not  a  colorable  device  for  creating  a 
water  powerJ 

While  the  State  can  not  by  eminent  domain  fur- 
ther purely  private  objects  which  tend  merely  to  the 
enrichment  of  private  individuals,  the  fact  that  a 
legitimate  public  object  tends  incidentally  to  benefit 


Hep.  918,  56  L.  E.  A.  240,  where  many  cases  so  holding  are  collected 
and  discussed  in  the  opinion. 

BWeidenfeld  V.  Sugar  Run  R.  Co.,  48  Fed.  Rep.  615;  Garbutt 
L-umber  Co.  v.  Georgia,  etc.,  R.  Co.,  Ill  Ga.  714;  Chicago,  etc.,  R. 
Co.  V.  Wiltse,  116  111.  449;  Matter  of  Niagara  Falls,  etc.,  R.  Co.,  108 
N.  Y.  375;  Matter  of  Rochester,  etc.,  110  N.  Y.  119;  State  v.  Hazel- 
ton,  etc.,  R.  Co.,  40  Ohio  St.  504;  Apex  Tramp  Co.  v.  Garbade,  32 
Oregon  582,  62  L.  R.  A.  513;  Pittsburg,  etc.,  R.  Co.  -j;.  Benwood  Iron 
Works,  31  W.  Va.  710,  2  L.  R.  A.  680. 

6  Fox  V.  Cincinnati,  104  U.  S.  783;  Buckingham  v.  Smith,  10 
Ohio  296. 

TKaukauna  Water-Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  142 
U.  S.  254. 


DUE  PKOCESS  OF  LAW  271 

private  interests  does  not  deprive  it  of  its  public    ^yj^J^'' 

cliaracter.     This  is  clearly  shown  in  cases  when  the  

power  is  conferred  on  corporations  such  as  railroads 
and  the  like,  and  their  right  to  appropriate  profits 
is  to  be  regarded  only  as  a  compensation  in  return 
for  the  public  duties  they  are  selected  to  perform.^ 

That  the  eminent  domain  may  be  exercised  for  lic'a^dVa'S' 
local  purposes  is  not  disputed.  It  may,  as  has  been  dent. 
seen,  be  employed  for  municipal  purposes,  such  as 
the  provision  of  water  or  gas  for  cities.  These  fa- 
cilities are  open  to  every  citizen  who  brings  himself 
within  certain  conditions,  and  this  is  all  that  is  re- 
quired to  give  a  public  character  to  the  use.  Thus, 
it  has  been  said  that  "it  is  not  essential  that  the  en- 
tire community  or  even  any  considerable  portion 
thereof  should  directly  enjoy  or  participate  in  an 
improvement  in  order  to  constitute  a  public  use. ' '  ^ 
And,  again,  the  public  use  ''may  be  for  the  inhabit- 
ants of  a  small  or  restricted  locality;  but  the  use 
and  benefit  must  be  in  common,  not  to  particular 
individuals  or  estates."  ^  Nor  need  the  public  have 
a  general  use  of  the  property;  its  use  is  ordinarily 
limited  by  the  objects  to  be  attained  by  the  grant, 
and  in  other  respects  the  authority  over  the  prop- 
erty of  the  persons  on  whom  the  eminent  domain  is 
conferred  may  be  exclusive.^ 

8  Stockton,  etc.,  R.  Co.  v.  Stockton,  41  Cal.  147;  Swan  v.  Wil- 
liams, 2  Mich.  427;  Matter  of  Townsend,  39  N.  Y.  171. 

9  Matter  of  New  York,  135  N.  Y.  253,  260;  Fallbrook  Irrigation 
Dist.  V.  Bradley,  164  U.  S.  112,  161.  See  also  O'Reiley  v.  Kankakee 
Valley  Draining  Co.,  32  Ind.  169;  Talbot  v.  Husdon,  16  Gray  (Mass.) 
417;  Bloomfield,  etc..  Natural  Gas  Light  Co,  v.  Richardson,  63  Barb. 
(N.  Y.)  437. 

1  Coster  V.  Tide  Water  Co.,  18  N.  J.  Eq.  54,  68. 

2  Matter  of  New  York,  135  N.  Y.  253.  See  also  Williams  V. 
Parker,  188  U.  S.  491. 


272 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Different 
meanings 
of  "neces- 
sity." 


"Intrinsic" 
and  "cir- 
cumstan- 
tial" ne- 
cessity. 


THE  NECESSITY  OF  TAKING  OR  APPROPRIATION. 

Necessity  may  be  used  in  respect  to  eminent  do- 
main in  at  least  two  different  senses.  It  may  refer 
to  the  relation  between  the  well  being  of  society  as  a 
whole  and  the  particular  object  for  which  the  emi- 
nent domain  is  employed.  In  this  sense,  it  is  used 
by  Chancellor  Kent  in  the  case  of  Gardner  v.  New- 
hurgh:^  "Grotius,  Puifendorf  and  Bynkershoeck, 
when  speaking  of  the  eminent  domain  of  the  sover- 
eign, admit  that  private  property  may  be  taken  for 
public  uses,  when  public  necessity  or  utility  re- 
quire it." 

Necessity  in  this  sense  exists  whenever  the  use  is 
public,  and  resolves  itself  into  the  question  of  public 
benefit  or  utility.  As  we  have  seen,  the  question 
belongs  to  the  legislature,  although,  as  in  the  case 
of  the  exercise  of  any  other  limited  power,  the  legis- 
lature may  exceed  the  authority  committed  to  it,  and 
its  determination,  therefore,  may,  so  to  say,  be  ve- 
toed by  the  courts  in  the  application  of  constitu- 
tional principles.  But  we  may  speak  of  necessity 
not  as  warranting  the  employment  of  eminent  do- 
main in  general,  that  is,  the  appropriation  of  any 
property,  but  as  justifying  the  appropriation  of  the 
particular  property  of  a  certain  individual  and  the 
extent  to  which  it  shall  be  taken.  Before  this  prob- 
lem of  '^circumstantial  necessity"  can  arise,  '* in- 
trinsic necessity,"  the  public  character  of  the  use, 
must  have  already  been  decided  in  the  affirmative.^ 

In  some  cases,  the  questions  of  intrinsic  neces- 

3  2  Johns.  Ch.    (N.  Y.)    162. 

4  These  expressions  are  adopted  from  Randolph  on  Eminent  Do- 
main, §  334. 


DUE  PROCESS  OF  LAW  273 

sity  and  circumstantial  necessity  may  be  sharply    ^^'JP^'^ 

distinguished,  while  in  other  cases  they  shade  into  

one  another  or  are  lost  in  the  question  of  the  public 
character  of  the  use.  For  that  public  character  de- 
pends largely  upon  the  facts  and  circumstances  sur- 
rounding the  particular  case  and  the  subject-matter 
with  regard  to  which  the  eminent  domain  is  to  be 
exercised ;  ^  and  this  is  true  whether  the  criterion  of 
eminent  domain  is  regarded  as  public  benefit  or  pub- 
lic control.  If  the  theory  that  State  control  is  es- 
sential be  adopted,  the  want  of  the  necessity  for  em- 
ploying eminent  domain  is  all  that  prevents  such  a 
business  as  that  of  a  hotel  or  theatre  from  using  the 
power  of  eminent  domain ;  ^  while,  if  the  presence 
of  important  public  benefit  is  enough,  the  necessity 
of  condemning  property  in  order  to  effectuate  the 
particular  purpose  or  policy  is  to  be  regarded."^ 
Upon  the  theory  of  public  benefits,  also,  the  magni- 
tude of  the  interests  involved  in  the  i^articular  com- 
munity is  always  considered  as  an  important  ele- 
ment,^ and  this  is  nothing  more  than  necessity  under 
another  aspect. 

Circumstantial  necessity  is  usually  said  to  be  en-  ft'an""' 
tirely   a  political   and  legislative   question.     ''The  notTurdy 
general  principle  is  now  well  settled,"  it  has  been 
observed  by  a  court  of  high  authority,  "that  when 

BFallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112,  159,  160; 
Talbot  V.  Hudson.  16  Gray  (Mass.)  417,  423;  Dayton  Gold,  etc., 
Min.  Co.  V.  Seawell,  11  Nev.  394,  410. 

6  See  Dayton  Gold,  etc.,  Min.  Co.  r.  Seawell,  11  Nev.  394,  410. 

7  See  Ryerson  v.  Brown,  35  Mich.  333,  339.  340. 

8  Irrigation  Dist.  V.  Williams,  76  Cal.  360,  369,  370  (irrigation 
in  California);  Hagar  V.  Yolo  County,  47  Cal.  222  (drainage); 
Battle,  etc.,  R.  Co.  v.  Montana  Union  R.  Co.,  16  Mont.  504  (mining 
in  Montana).     See  also  supra,  p.  266. 

18 


274  DUE  PROCESS  OF  LAW 

Chapter    the  uses  are  in  fact  public,  the  necessity  or  expedi- 

'—  ency  of  taking  private  property  for  such  uses  by 

the  exercise  of  the  power  of  eminent  domain,  the  in- 
strumentalities to  be  used,  and  the  extent  to  which 
such  right  shall  be  delegated  are  questions  apper- 
taining to  the  political  and  legislative  branches  of 
the  government."®  It  will  be  observed  that  this 
statement  groups  several  questions  as  equally  for  the 
legislature.  That  of  instrumentalities  or  machinery 
to  be  used  in  administering  eminent  domain  is  for 
the  legislature  exclusively,  subject  to  special  consti- 
tutional provisions  and  to  the  general  requirement 
of  notice  and  hearing.  The  extent  to  which  the 
power  is  delegated  is  also  a  purely  political  ques- 
tion, subject  to  the  limitations  implied  in  the  separa- 
tion of  the  departments  of  government  under  our 
constitutional  system.  But  the  existence  of  cir- 
cumstantial necessity  in  a  given  case  brings  up  other 
questions  which  can  not  be  disposed  of  so  easily. 
The  legislature  may  itself  decide  both  the  questions 
of  intrinsic  and  circumstantial  necessity,  that  is,  it 
may  determine  that  a  certain  public  use  justifies  the 
employment  of  eminent  domain  and  may  designate 
the  particular  property  to  be  taken ;  or,  instead  of 
determining  the  necessity  of  taking  specific  property 
directly,  it  may  delegate  the  power  of  making  the 
determination.  This  delegation  may  include  the 
whole  duty  of  deciding  the  necessity  and  extent  of 
the  taking,  or  the  legislature  may  prescribe  the  ex- 
tent of  the  property  to  be  taken  and  the  estate 
therein  which  is  to  be  appropriated,  and  delegate 

9  Matter  of  Niagara  Falls,  etc.,  R.  Co.,  108  N.  Y.  375,  383.     See 
also  State  v.  Rapp,  39  Minn.  65. 


DUE  PROCESS  OF  LAW  275 


merely  the  power  of  deciding  whether  the  public  use    Chapter 

requires  the  taking  of  particular  property  to  the  pre- 

scribed  extent.  When  the  legislature  determines  the 
entire  question  of  circumstantial  necessity,  or  when 
it  takes  upon  itself  to  mark  out  the  extent  of  prop- 
erty to  be  condemned,  if  the  authorities  to  whom  the 
power  of  decision  is  delegated  conclude  that  there 
is  need  of  condemnation,  the  true  principle  would 
seem  to  be  not,  as  usually  stated,  that  the  decision  is 
absolute  and  final,^  but  that  the  courts  will  not  in- 
terfere with  the  decision  of  the  legislature  unless  its 
powers  have  been  exercised  arbitrarily  and  the  tak- 
ing is  clearly  out  of  all  proportion  to,  and  is  mani- 
festly unnecessary  for,  the  end  in  view. 

In  such  a  case,  the  taking  can  not  in  any  just  sense  JetfrS^ 
be  said  to  be  for  a  public  purpose,  and,  giving  all  re-  drcCm- 

,  .  .  ,        stantial  ne- 

spect  to  the  legislative  determination,  property  ob-  cessuy^may 
viously  not  necessary  for  the  object  involved  is,  so  IP^^^"^' 
far  as  its  owner  is  concerned,  merely  confiscated. 
Yet  we  find  the  absolute  nature  of  the  legislative  de- 
cision broadly  stated  by  the  Supreme  Court  of  the 
United  States  in  recent  cases.  ' '  By  granting, ' '  says 
the  court,  "a  right  of  way  four  hundred  feet  in 
width.  Congress  must  be  understood  to  have  conclu- 

1  Mississippi,  etc.,  Boom  Co.  v.  Patterson,  98  U.  S.  403,  406; 
Shoemaker  v.  U.  S.,  147  U.  S,  282;  Backus  V.  Fort  St.  Union  Depot 
Co.,  169  U.  S.  567;  Moore  v.  Sanford,  151  Mass.  285;  Lynch  v. 
Forbes,  161  Mass.  302;  Fairchild  V.  St.  Paul,  46  Minn.  540;  Matter 
of  Niagara  Falls,  etc.,  E.  Co.,  108  N.  Y.  375,  383 ;  Bridal  Veil  Lum- 
bering Co.  V.  Johnson,  30  Oregon  205;  Ryan  v.  Louisville,  etc.,  Ter- 
minarCo.,  102  Tenn.  111. 

In  almost  all  these  cases,  the  rule  is  merely  stated  in  the  course 
of  argument,  and  is  not  applied,  or  the  case  is  distinguished. 

It  has  been  held  otherwise  when  the  Constitution  authorizes  tak- 
ing private  property  "  when  necessity  requires  it."  The  question 
of  necessity  is  then  judicial.     Stearns  v.  Barre,  73  Vt.  281. 


276  DLJl^  PllOCESS  OF  LAW 

Chapter    sivelv  determined  that  a  strip  of  that  width  was 
VIII.  -^  .  . 
necessary  for  a  public  work  of  such  importance. ' '  ^ 

Some  adaptation  of  the  extent  of  the  property  whose 
condemnation  was  authorized  to  the  end  to  be  ob- 
tained might  be  found  in  such  a  right  of  way  for  a 
great  transcontinental  railroad,  and  this  would  dis- 
pose of  the  question  under  any  view.  For,  so  long 
as  any  adjustment  of  the  condemnation  authorized 
to  the  public  purpose  proposed  can  be  discerned,  the 
legislative  decision  is,  upon  every  principle  of  con- 
stitutional law,  final  here  as  elsewhere.^  When  and 
to  the  extent  that  the  question  of  circumstantial  ne- 
cessity is  delegated,  the  existence  of  the  necessity 
is  jurisdictional  and  like  other  questions  of  jurisdic- 
tion it  is  a  judicial  question  which  the  courts  must 
pass  upon.'*  Aspects  of  circumstantial  necessity 
which  have  thus  been  held  to  be  for  the  court  under 
general  laws  delegating  the  power  of  eminent  domain 
are:  Whether  to  a  grant  of  eminent  domain  it  is 
necessary  to  condemn  lands  already  condemned  and 
make  another  grant ;  ^  whether  a  subsidiary  object  is  a 

2  Northern  Pac.  R.  Co.  v.  Smith,  171  U.  S.  261,  275;  Northern 
Pac.  R.  Co.  V.  Townsend,  190  U.  S.  267,  272. 

3  See  Lewis,  Em.  Dom.,  §393;  Atlantic,  etc.,  R.  Co.  v.  Penny,  119 
Ga.  479. 

A  statute  authorizing  the  taking  of  an  entire  lot  through  which 
a  street  was  laid  out  has  been  held  unconstitutional  as  taking  pri- 
vate property  unnecessary  for  public  use.  Matter  of  Albany  St.,  11 
Wend.    (N.  Y.)    149,  25  Am.  Dec.  618. 

It  would  hardly  be  contended  that  a  statute  authorizing  the  con- 
demnation of  a  strip  of  territory  a  mile  wide  for  the  use  of  a  rail- 
road, would  foreclose  all  inquiry  as  to  the  necessity  of  such  a  taking. 

*0'Hare  v.  Chicago,  etc.,  R.  Co.,  139  111.  151;  Guyer  v.  Daven- 
port, etc.,  R.  Co.,  196  111.  370,  377;  Erie  R.  Co.  v.  Steward.  170 
N.  Y.  172;  Highland  Boy  Gold  Min.  Co.  v.  Strickley.  (C.  C.  A.)  116 
Fed.  Rep.  852.  See  Lewis,  Em.  Dom.,  393;  and  infra,  p.  296,  wliere 
the  exceptional  doctrine  in  some  States  is  noted. 

6  Spring  Valley  Water  Works  v.  San  Mateo  Water  Works,  64  Cal. 


DUE  PROCESS  OF  LAW  277 


necessity  for  effecting  a  given  public  purpose,  as  a    ^^^pJ^'' 

given  ''spur  line"  of  railway  to  the  objects  of  the  

incorporation  of  the  road ;  ^  or  whether  a  particular 
statute  justifies  a  certain  act  of  expropriation,  under 
the  rule  that  a  grant  of  eminent  domain  must  be  so 
construed  as  to  be  limited  to  the  necessity  of  the 
caseJ  The  general  rule  ordinarily  stated  seems  to 
be  a  survival  from  times  when  the  power  of  eminent 
domain  had  not  been  subjected  to  the  analysis  which 
has  resulted  from  the  multitude  of  decisions  at  the 
present  day,  and  when  the  courts  were  inclined  to 
concede  uncontrolled  authority  on  many  questions  to 
the  legislature. 

The  extent  of  public  necessity,  whether  absolute  2,nib[f ' 
or  relative  merely,  is  a  subject  of  difference  of  opin-  required'. 
ion.  It  has  been  said  in  cases  where  the  necessity 
was  under  consideration  as  an  element  in  the  public 
character  of  the  use,^  as  well  as  in  cases  where  the 
question  was  the  right  of  one  corporation  to  con- 
demn the  property  of  another,''  that  the  object  to  be 
accomplished  must  be  one  which  is  absolutely  essen- 
tial and  is  otherwise  impracticable.  But  such  a  rule 
obviously  shears  the  legislature  of  all  discretion  and 
is  not  a  fitting  criterion.  Much  more  reasonable  is 
the  doctrine  thus  laid  down  in  an  Alabama  case, 
where  the  condemnation  of  the  property  of  one  rail- 
road by  another  was  involved:  ''It  would  be  diffi- 
cult to  lay  down  any  specific  rule,  as  to  the  meas- 

123;  Milwaukee,  etc.,  R.  Co.,  r.  Faribault,  23  Minn.  167;  Butte,  etc., 
R.  Co.  f.  Montana  Union,  etc.,  R.  Co.,  16  Mont.  504. 

6  See  swpra,  p.  269. 

TCreston  Waterworks  Co.  V.  McGrath,  89  Iowa  502;  Fairchild 
V.  St.  Paul,  46  Minn.  540,  543. 

8  Ryerson  V.  B^o^vn,  35  Mich.  333,  335. 

9  Scranton  Gas,  etc.,  Co.  v.  Northern  Coal,  etc.,  Co.,  192  Pa.  St.  80. 


278  DUE  PROCESS  OF  LAW 

Chapter    ure  of  the  necessity,  of  sufficient  scope  to  include  all 

cases.     It  may  be  observed  generally  that  necessary 

in  this  connection  does  not  mean  an  absolute  or  in- 
dispensable necessity,  but  reasonably  requisite  and 
proper  for  the  accomplishment  of  the  end  in  view, 
under  the  particular  circumstances  of  the  case. ' '  ^ 

COMPENSATION. 

Necessity  for  Compensation. 
Compensa-         In  statiug  the  conditions  for  the  exercise  of  emi- 

tion  an  .  ^~  •  ,  .        . 

equitable      neut  domam,  Grotius  says  that,  if  it  can  be  done, 

and  moral  7  ./  7 

"s^it.  compensation  should  be  made  from  the  common 
treasury  of  the  State,  to  him  who  has  lost  his  prop- 
erty.2  Thus  the  moral  duty  of  compensation,  based 
on  a  ''clear  principle  of  natural  equity,"  ^  is  recog- 
nized, and  a  legal  sanction  was  given  this  principle 
by  special  provisions  in  the  United  States  Constitu- 
tion and  in  the  constitutions  of  almost  all  the 
States.'*    These  provisions  for  compensation  form 

1  Mobile,  etc.,  R.  Co.  v.  Alabama  Midland  R.  Co.,  87  Ala.  501. 
To  the  same  effect,  see  Butte,  etc.,  R.  Co.  v.  Montana,  etc..  Union 

R.  Co.,  16  Mont.  504. 

That  the  property  be  reasonably  necessary  to  the  public  use  is 
all  that  should  be  required  by  the  courts  when  the  legislature  has 
submitted  to  thorn  the  question  of  necessity.  Tracy  V.  Elizabeth- 
town,  etc.,  R.  Co.,  80  Ky.  259.  266. 

2  "  Requiritur  .  .  .  deinde,  ut,  si  fieri  potest,  eompensatio  fiat 
ei  qui  suum  amisit,  ex  communi."  De  Jure  Belli  ct  Pads,  lib.  ii,  c. 
14,  sec.  7.  Various  passages  from  the  writings  of  Grotius  (A.  D. 
1625),  Pufendorf  (A.  D,  1672)^  Heineccius  (A.  D.  1730),  Bynkers- 
hoek  (A.  D.  1737),  and  Vattel  (A.  D.  1758)  on  the  subject  of  emi- 
nent domain  are  collected  in  Thayer's  Cas.  on  Const.  Law,  pp.  940, 
951,  982,  note. 

3Monongahela  Nav.  Co.  V.  U.  S..  148  U.  S.  312;  Gardner  v.  New- 
burgh,  2  Johns.  Ch.   (N.  Y.)   162. 

4  Const.  U.  S.,  Amend.  V;  9  Fed.  Stat.  Annot.  305;  and  see  the 
several  State  constitutions,  and  10  Am.  and  Eng.  Encyc.  of  Law  (2d 
ed.)   1050,  1152. 


DUE  PROCESS  OF  LAW  279 

no  part  of  the  power  of  eminent  domain  itself,  which    ^yjff^^ 

exists  in  the  State  independent  of  constitutional  rec-  

ognition.  They  are  a  mere  limitation  upon  the  use 
of  the  power,  constituting  a  condition  upon  which  it 
may  be  exercised.^ 

The  right  to  compensation  was  felt,  therefore,  ?eldy  rec- 
to   require    for    its    practical    enforcement    direct  wnstL-" 

^  .         .  tions. 

constitutional  recognition.  The  older  constitutions 
provided  for  compensation  when  property  was 
*  ^  taken  "^  for  public  use,  while  more  recent  instru- 
ments specify ' '  taken  or  damaged. "  ^  In  very  many 
jurisdictions,  as  we  shall  see,  judicial  construc- 
tion of  the  term  *' taken"  has  brought  about  some- 
what similar  results  in  the  absence  of  any  addition 
to  the  constitutional  clause.^ 

But  the  requirement  of  compensation  may  exist  g'jj^^y'' 
in  the  absence  of  a  constitutional  clause  dealing  Js^^Pnaw. 
specifically  with  eminent  domain.  The  obligation 
to  compensate  the  owner  whose  property  is  taken 
by  authority  of  the  State  for  public  needs  arises 
from  the  guaranties  of  the  right  to  property  con- 
tained in  our  bills  of  rights,  and  specifically  from 
the  provision  that  private  property  shall  not  be 
taken  without  due  process  of  law.  This  was  inti- 
mated at  an  early  period  in  State  courts.  In  North 
Carolina,  where  the  constitution  contains  no  spe- 
cific provision  for  compensation,  Chief  Justice  Kuf- 
fin,  in  1837,  speaking  for  the  Supreme  Court,  said  in 

5U.  S.  V.  Jones,  109  U.  S.  513.  But  see  Sinnickson  v.  Johnson, 
17  N.  J.  L.  129,  quoted  in  Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S. 
312. 

6  U.  S.  Const.,  Amendment  V;  9  Fed.  Stat.  Annot.  305. 

7  Beginning  with  Illinois  in  1870.  See  Chicago  v.  Taylor,  125 
U.  S.  161. 

8  See  infra,  p.  295. 


280  DUE  PROCESS  OF  LAW 


Chapter    reference  to  the  guaranty  of  "the  law  of  the  land:'* 

'—  ' '  Under  the  guaranty  of  this  article,  it  has  been  held, 

and  in  our  opinion  properly  held,  that  private  prop- 
erty is  protected  from  the  arbitrary  power  of  trans- 
ferring it  from  one  person  to  another.  We  doubt  not 
that  it  is  also  protected  from  the  power  of  despotic 
resumption,  upon  a  legislative  declaration  of  forfeit- 
ure, or  merely  to  deprive  the  owner  of  it,  or  to  en- 
rich the  treasury,  unless  as  a  pecuniary  contribution 
by  way  of  tax.  .  .  .  Though  not  so  obvious,  it 
may  also  be  true  that  the  clause  under  consideration 
is  restrictive  of  the  right  of  the  public  to  the  use  of 
private  property,  and  impliedly  forbids  it,  without 
compensation.  But  it  is  a  point  on  which  the  court 
is  not  disposed,  nor  at  liberty,  to  give  a  positive  opin- 
ion on  this  occasion. ' '  ^  The  principle  has  been  ex- 
plicitly adopted  by  the  Supreme  Court  of  the  United 
States  in  construing  the  Fourteenth  Amendment  to 
the  Federal  Constitution.  In  Chicago,  etc.,  R.  Co.  v. 
Chicago,^  the  court  said:  "Due  protection  of  the 
rights  of  property  has  been  regarded  as  a  vital 
principle  of  republican  institutions.  'Next  in  de- 
gree to  the  right  of  personal  liberty,'  Mr.  Broom,  in 
his  work  on  Constitutional  Law,  says,  4s  that  of  en- 
joying private  property  without  undue  interference 
or  molestation.' 2  The  requirement  that  the  prop- 
erty shall  not  be  taken  for  public  use  without  just 
compensation  is  but  'an  affirmance  of  a  great  doc- 
trine established  by  the  common  law  for  the  protec- 
tion of  private  property.    It  is  founded  in  natural 

oRaleifjh,  etc.,  R.  Co.  v.  Davis.  2  Dev.  &  B.  L,   (19  N.  Car.)  451. 
And  see  Johnston  V.  Rankin,  70  N.  Car.  550. 

1  166   U.   S.   226. 

2  Broom's  Const.  Law,  228. 


DUE  PROCESS  OF  LAW  281 

equity,  and  is  laid  down  by  jurists  as  a  principle  of    ^yjjj^'' 
universal  law.    Indeed,  in  a  free  government,  almost 
all  other  rights  would  become  worthless  if  the  gov- 
ernment possessed  an  uncontrollable  power  over  the 
private  fortune  of  every  citizen.'^ 

''But  if,  as  this  court  has  adjudged,  a  legislative 
enactment  assuming  arbitrarily  to  take  the  property 
of  one  individual  and  give  it  to  another  individual, 
would  not  be  due  process  of  law,  as  enjoined  by  the 
Fourteenth  Amendment,  it  must  be  that  the  require- 
ment of  due  process  of  law  in  that  amendment  is  ap- 
plicable to  the  direct  appropriation  by  the  State  to 
public  use  and  without  compensation  of  the  private 
property  of  the  citizen.  The  legislature  may  pre- 
scribe a  form  of  procedure  to  be  observed  in  the  tak- 
ing of  private  property  for  public  use,  but  it  is  not 
due  process  of  law  if  provision  be  not  made  for  com- 
pensation. Notice  to  the  owner  to  appear  in  some 
judicial  tribunal  and  show  cause  why  his  property 
shall  not  be  taken  for  public  use  without  compensa- 
tion would  be  a  mockery  of  justice.  Due  process  of 
law,  as  applied  to  judicial  proceedings  instituted  for 
the  taking  of  private  property  for  public  use  means, 
therefore,  such  process  as  recognizes  the  right  of 
the  owner  to  be  compensated  if  his  property  be 
wrested  from  him  and  transferred  to  the  public. 
The  mere  form  of  the  proceeding  instituted  against 
the  owner,  even  if  he  be  admitted  to  defend,  can  not 

3  Citing  2  Story,  Const.,  see.  1790;  1  Bl.  Com.  138,  139;  Cooley, 
Const.  Limit.  559;  People  v.  Piatt,  17  Johns.  (N.  Y.)  195,  215; 
Bradshaw  V.  Rogers,  20  Johns.  (K  Y.)  103,  106;  Petition  of  Mt. 
Washington  Road  Co.,  35  N.  H.  134,  142;  Parham  v.  Justices,  9  Ga. 
341,  348;  Ex  p.  Martin,  13  Ark.  199,  206  et  seq.;  Johnston  v.  Rankin, 
70  N.  Car.  550,  555. 


282 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Substantial 
denial  of 
compensa- 
tion by 
States  re- 
viewable. 


Congress 
may  legis- 
late against 
laches. 


convert  the  process  used  into  due  process  of  law  if 
the  necessary  result  be  to  deprive  him  of  his  prop- 
erty without  compensation. ' '  ^ 

The  Federal  Supreme  Court  may  always  exam- 
ine proceedings  had  in  a  State  court  under  State 
authority  for  the  appropriation  of  private  property 
to  public  purposes,  so  far  as  to  inquire  whether  that 
court  prescribed  any  rule  of  law  in  absolute  disre- 
gard of  the  owner's  right  to  just  compensation. 
The  restriction  "in  absolute  disregard  of  the  right 
to  just  compensation"  is  necessary,  said  the  court, 
''because  we  do  not  wish  to  be  understood  as  holding 
that  every  order  or  ruling  of  the  State  court  in  a  case 
like  this  may  be  reviewed  here,  notwithstanding  our 
jurisdiction,  for  some  purposes,  is  beyond  question. 
Many  matters  may  occur  in  the  progress  of  such 
cases  that  do  not  necessarily  involve,  in  any  substan- 
tial sense,  the  federal  right  alleged  to  have  been  de- 
nied; and  in  respect  of  such  matters,  that  which  is 
done  or  omitted  to  be  done  by  the  State  court  may 
constitute  only  error  in  the  administration  of  the 
law  under  which  the  proceedings  were  instituted."^ 

When  an  act  of  Congress  has  admitted  a  liability 
on  the  part  of  the  government  to  pay  for  property 
taken  for  public  use,  and  pointed  out  a  method  for 

4  See  also  Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S. 
685;  Tindal  v.  Wesley,  167  U.  S.  204;  Norwood  V.  Baker.  172  U.  S. 
269;  San  Diego  Land  Co.  V.  National  City,  174  U.  S.  739;  Madison- 
ville  Traction  Co.  v.  St.  Bernard  Min.  Co.,   196  U.  S.  2-'52. 

In  Yesler  v.  Washington  Harbor  Line  Com'rs,  146  U.  S.  646,  the 
court  declared  that  the  provision  for  compensation  in  the  Fifth 
Amendment  was  "  to  be  read  with  the  Fourteenth  Amendment,  pro- 
hibiting the  States  from  depriving  any  person  of  property  without 
due  process  of  law." 

5  Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226;  Backus  i:  Fort 
Street  Union  Depot  Co.,  169  U.  S.  567. 


DUE  PROCESS  OF  LAW  283 


determining  the  compensation  due,  a  repeal  of  the    Chapter 


statute  after  tliirteen  years,  witli  a  saving  as  to  pro- 
ceedings already  begun,  is  a  legitimate  exercise  of 
authority.  **  Congress  was  not  obliged  to  keep  the 
Act  of  1875  in  operation  forever ;  and  reasonable  op- 
portunity having  been  afforded  to  the  ijlaintiffs  in 
error  to  obtain  compensation  for  the  damages  sus- 
tained by  the  construction  of  the  improvement,  we 
think  they  must  be  deemed  to  have  waived  their 
rights  to  them. ' '  ^ 

Property  for  Which  Compensation  Must  Be 
Provided. 

The  power  of  eminent  domain  embraces  all  f°^^oex^' 
"property."  Property  is  nomen  generalissimum  with''^ 
and  extends  to  every  species  of  valuable  right  and 
interest,  and  includes  real  and  personal  property, 
easements,  franchises,  and  incorporeal  heredita- 
ments.'^ The  right  to  compensation  is  coextensive 
with  the  right  of  property,  wherever  a  right  of 
property  exists,  in  the  language  of  the  Fourteenth 
Amendment,  in  any  ''person." 

When  a  property  right  exists  in  or  has  been  once  hJid^^^the 
legally  acquired  by  the  State,  or  its  agents,  the  use  of  fglnd/s.''^ 

sKaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  142 
U.  S.  254.  The  real  point  decided  seems  only  to  be  that,  if  the 
repeal  of  the  Act  of  Congress  left  the  property  owner  the  right  to 
assejt  his  rights  by  a  common-law  action,  he  certainly  after  the 
long  lapse  of  time  and  acquiescence  had  no  right  to  resort  to  self 
help. 

7  Boston,  etc.,  R.  Co.  v.  Salem,  etc.,  R.  Co.,  2  Gray  (Mass.)  1. 
That  money  may  be  seized  under  the  power  of  eminent  domain  has 
been  denied,  Burnett  v.  Sacramento,  12  Cal.  76;  and  affirmed  Ham- 
mett  V.  Philadelphia,  65  Pa.  St.  152,  sometimes  with  the  limitation 
that  it  can  only  be  done  by  the  State  itself  in  time  of  war.  Cary 
Library   r.  Bliss,   151  Mass.  364;   People  r.  Brooklyn,  4  N.  Y.  419. 


284  DUE  PROCESS  OF  LAW 


Chapter    guch  ris'ht  bv  the  State  does  not  demand  any  compen- 

VIII 

—  sation  to  the  former  owner.  Thus,  when  the  State  ac- 
quires or  in  virtue  of  its  sovereignty  possesses  an 
easement  or  servitude  in  property,  the  use  of  the 
property  for  any  purpose  within  the  scope  of  the 
easement  acquired  gives  no  right  to  compensation  to 
the  general  owner,^  but  an  additional  or  totally  dif- 
ferent servitude  can  not  be  placed  upon  the  property 
without  compensation.^  Corporeal  property  which 
the  State,  by  the  delegation  of  the  eminent  domain, 
has  allowed  private  persons  or  corporations  to  ac- 
quire for  some  public  purpose  is  so  far  private  prop- 
erty in  the  hand  of  such  persons  or  corporations  that 
it  can  not  be  used  for  other  public  purposes  unless  it 
is  again  condemned  and  compensation  paid  for  it/ 

State  prop-         Like    principles    regulate    the  property    of    the 

erty  and  p  • 

Eminent  Statcs  wlth  rclatiou  to  the  paramount  power  ot  emi- 
Seand  Hcut  domalu  iu  the  federal  government,  and  the 
pah"ty?'  property  of  municipalities  with  regard  to  the  State. 
The  federal  government,  acting  in  pursuance  of  pow- 
ers expressly  or  impliedly  vested  in  it  by  the  Con- 
stitution, may  acquire  property  of  the  States  by  con- 
demnation subject  to  the  right  of  compensation.^ 
But  property  held  by  the  States  in  trust  for  purposes 
the  control  of  which  is  specifically  vested  in  the 
general  government  may  be  used  by  the  United 

8  People  V.  Kerr,  27  N.  Y.  188. 

»  Story  V.  New  York  El.  R.  Co.,  90  N.  Y.  122. 

What  amounts  to  an  additional  servitude,  and  what  rights  the 
State  or  the  public  has  acquired  in  given  property,  depend  on  con- 
struction, and  the  decisions  vary  widely. 

1  Western  Union  Tel.  Co.  V.  Pennsylvania  R.  Co.,  195  U.  S.  540, 
applying  the  doctrine  stated  to  a  railroad  right  of  way  and  distin- 
guishing it  from  a  mere  easement. 

2  See  St.  Louis  i'.  Western  Union  Tel.  Co.,  148  U.  S.  92. 


DUE  PROCESS  OF  LAW  285 

States  for  those  purposes  without  making  compensa-    ^yjf{^'" 

tion.     If    the    State   holds    lands    under    navigable  

water,  it  is  in  trust  for  the  public  uses  of  navigation 
and  commerce,  and  such  lands  may  be  appropriated 
by  the  United  States  for  a  bridge  to  be  used  as  a 
post  road  without  making  any  compensation  to  the 
State,^  and  this  although  such  lands  have  passed 
into  the  hands  of  a  private  person  by  grant  from  the 
State.^  The  property  of  municipal  corporations,  if 
held  in  trust  for  the  public,  may  be  taken  by  the  leg- 
islature without  additional  compensation,  but  the 
property  of  such  corporations  held  for  their  own  cor- 
porate purposes  can  not  be  taken  without  compensa- 
tion.^ 

The  determination  of  what  water  is  navigable,  rij^s'lnd 
the  title  to  lands  thereunder,  and  the  extent  of  ownership. 
the  riparian  owner's  rights  in  the  water  and  to 
the  banks  are  matters  of  local  sovereignty,  the  regu- 
lation of  which  belongs  exclusively  to  the  States; 
and  whether  in  a  given  case  the  curtailment  of  the 
enjoyment  of  the  stream  by  the  riparian  owner 
amounts  to  a  taking  of  property  requiring  compensa- 
tion, depends  on  how  far  the  law  of  the  State  recog- 
nizes the  enjoyment  as  private  property.^    "Where 

3  Stockton  V.  Baltimore,  etc.,  R.  Co.,  32  Fed.  Rep.  9.  See  also 
Luxton  V.  Xorth  River  Bridge  Co.,  153  U.  S.  525.  The  whole  ques- 
tion of  the  title  to  such  lands  is  exhaustively  considered  by  the 
United  States  Supreme  Court,  speaking  per  Gray,  J.,  in  Shively  v. 
Bowlby,  152  U.  S.  1. 

4  Hawkins  Point  Light-House  Case,  39  Fed.  Rep.  77. 

5  Clinton  r.  Cedar  Rapids,  etc..  R.  Co.,  24  Iowa  455 ;  Mount  Hope 
Cemetery  v.  Boston,  158  Mass.  509. 

s  Barney  v.  Keokuk,  94  U.  S.  324;  St.  Louis  V.  Myers,  113  U.  S. 
566;  Packer  r.  Bird,  137  U.  S.  661;  St.  Louis  v.  Rutz.  138  U.S.  226; 
Hardin  v.  Jordan.  140  U.  S.  371;  Kaukauna  Water-Power  Co.  v. 
Green  Bay,  etc..  Canal  Co.,  142  U.  S.  254. 


286  DUE  PROCESS  OF  LAW 

Chapter  the  State  does  recognize  riparian  rights  on  such 
'■—  streams  as  private  property  provision  for  compensa- 
tion must  be  made  when  riparian  rights  are  taken 
for  a  public  purpose."  On  the  other  hand,  if  lands 
under  navigable  water  and  the  right  to  the  accustomed 
flow  of  the  stream  are  regarded  as  the  property  of 
the  State  or  subject  to  its  control,  a  loss  suffered  by 
a  lower  riparian  owner  in  consequence  of  the  use  of 
the  water  at  a  point  higher  on  the  stream  for  muni- 
cipal water  supply  under  legislative  authority,  is  not 
a  deprivation  of  property  without  due  process  of 
law,  though  the  lower  riparian  owner  receives  no 
compensation.^  In  Louisiana  lands  abutting  on 
rivers  and  bayous  are,  in  accordance  with  a  doctrine 
existing  in  the  territory  of  Louisiana  before  its  ac- 
quisition by  the  United  States,  subject  to  a  servitude 
in  favor  of  the  public,  whereby  such  portions  thereof 
as  are  necessary  for  the  purpose  of  making  and  re- 
pairing public  levees  may  be  taken,  in  pursuance  of 
law,  without  compensation.  Lands  therefore  taken 
by  the  State  for  these  purposes  without  compensa- 
tion are  taken  in  accordance  with  due  process  of 
law.9 
Just  com-  The  right  to  ''just  compensation"  being  given  by 

pensation 

a  judicial     the  Constitution,  the  question  of  what  amounts  to  an 

question.  '  ^ 

adequate  return  for  property  taken  is  a  judicial  one, 
and  the  legislature  has  no  right  to  lay  down  an  arbi- 
trary rule  that  the  tribunals  appointed  to  assess 
values  shall  not  take  into  account  certain  definite 

7  Kaukauna  Water-Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,   142 
U.  S.  254. 

8  St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water  Com'rs, 
168  U.  S.  366. 

sEldridge  v.  Trezevant,   160  U.  S.  452. 


DUE  PROCESS  OF  LAW  287 

elements  in  the  value  of  the  property  taken.     Thus,    ^^,']fj^^ 

when  the  national  government,  by  virtue  of  its  au-  

thority  over  commerce,  undertook  to  improve  a  navi- 
gable stream  and  to  that  end  condemned  a  lock 
erected  therein  under  a  franchise  from  the  State 
government  by  a  State  corporation,  Congress  had  no 
right  to  provide  that  '4n  estimating  the  sum  to  be 
paid  by  the  United  States,  the  franchise  of  said  cor- 
poration to  collect  tolls  should  not  be  considered  or 
estimated."  The  franchise  to  collect  tolls  was  a 
vested  right  of  property  and  a  necessary  element  in 
estimating  the  value  of  the  property  taken.  The 
court  said:  "But,  like  the  other  powers  granted  to 
Congress  by  the  Constitution,  the  power  to  regulate 
commerce  is  subject  to  all  the  limitations  imposed  by 
such  instrument ;  and  among  them  is  that  of  the  Fifth 
Amendment,  we  have  heretofore  quoted.  Congress 
has  supreme  control  over  the  regulation  of  commerce, 
but  if,  in  exercising  that  supreme  control,  it  deems 
it  necessary  to  take  private  property,  then  it  must 
proceed  subject  to  the  limitations  imposed  by  the 
Fifth  Amendment,  and  can  take  only  on  payment  of 
just  compensation.  ...  If  a  man's  house  must 
be  taken,  that  must  be  paid  for ;  and  if  the  property 
is  held  and  improved  under  a  franchise  from  the 
State,  with  power  to  take  tolls,  that  franchise  must 
be  paid  for,  because  it  is  a  substantial  element  in 
the  value  of  the  property  taken.  So,  coming  to  the 
case  before  us,  while  the  power  of  Congress  to  take 
this  property  is  unquestionable,  yet  the  power  to 
take  is  subject  to  the  constitutional  limitation  of  just 
compensation. ' '  ^     But  it  appears  that  by  an  express 

iMonongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.  312. 


288 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Effect  of 
act  limit- 
ing expen- 
diture. 


reservation  in  the  charter  creating  the  franchise,  the 
franchise  may  be  subsequently  destroyed  by  the  gov- 
ernment without  creating  any  liability  to  make  com- 
pensation therefor.2 

It  can  not  be  claimed  that  the  legislature  values 
land  arbitrarily  because  it  limits  the  aggregate 
amount  to  be  expended  for  a  certain  public  pur- 
pose. In  a  case  where  such  a  claim  was  made, 
the  court  said:  ''The  validity  of  the  law  is  further 
challenged  because  the  aggregate  amount  to  be 
expended  in  the  purchase  of  land  for  the  park  is 
limited  to  the  amount  of  $1,200,000.  It  is  said  that 
this  is  equivalent  to  condemning  the  lands  and  fixing 
their  value  by  arbitrary  enactment.  But  a  glance  at 
the  act  shows  that  the  property  holders  are  not  af- 
fected by  the  limitation.  The  value  of  the  lands  is 
to  be  agreed  upon,  or,  in  the  absence  of  agreement, 
is  to  be  found  by  appraisers  to  be  appointed  by  the 
court.  The  intention  expressed  by  Congress  not  to 
go  beyond  a  certain  aggregate  expenditure  can  not 
be  deemed  a  direction  to  the  appraisers  to  keep  with- 
in any  given  limit  in  valuing  any  particular  piece  of 
property.  It  is  not  unusual  for  Congress,  in  making 
appropriations  for  the  erection  of  public  buildings, 
including  the  purchase  of  sites,  to  name  a  sum  be- 
yond which  expenditure  shall  not  be  made,  but  no- 
body ever  thought  that  such  a  limitation  had  any- 
thing to  do  with  what  the  owners  of  property  should 
have  a  right  to  receive  in  case  proceedings  to  con- 
demn had  to  be  resorted  to. "  ^ 

2  Bridge  Co.  v.  U.  S.,  105  U.  S.  470,  as  explained  in  Monongahela 
Nav.  Co.  V.  U.  S.,   148  U.  S.  312. 

3  Shoemaker  r.  U.  S.,  147  U.  S.  282. 

Perhaps  a  different  question  might  arise  if  the  appropriation  had 


DUE  PROCESS  OF  LAW  289 


Chapter 
VIII. 


Amount  of  Compensation  and  Provision  for 
Payment. 

The  just  compensation  required  by  the  Constitu-  5?tTJd  to^'^' 
tion  to  be  made  to  the  owner  is  to  be  measured  by  the  proper°ty 
loss  caused  to  him  by  the  appropriation.  He  is  en- 
titled to  receive  the  value  of  which  he  has  been  de- 
prived, and  no  more.  To  award  him  less  would  be 
unjust  to  him ;  to  award  him  more  would  be  unjust 
to  the  public*  The  various  rules  adopted  in  State 
courts  for  determining  the  value  of  the  property 
taken  and  the  consequent  right  to  compensation  are 
mainly  matter  of  local  law.^ 

The  general  rule  for  estimating  values  is  thus 
stated  by  the  United  States  Supreme  Court:  "Up- 
on the  question  litigated  in  the  court  below,  the  com- 
pensation which  the  owner  of  the  land  condemned 
was  entitled  to  receive,  and  the  principle  upon  which  ing  value 

'  J.  i  i  jj£  property 

the  compensation  should  be  estimated,  there  is  less  taken. 
difficulty.  In  determining  the  value  of  land  appro- 
priated for  public  purposes,  the  same  considerations 
are  to  be  regarded  as  in  a  sale  of  property  between 
private  parties.  The  inquiry  in  such  cases  must  be, 
what  is  the  property  worth  in  the  market,  viewed  not 
merely  with  reference  to  the  uses  to  which  it  is  at 
the  time  applied,  but  with  reference  to  the  uses  to 
which  it  is  plainly  adapted;  that  is  to  say,  what  is 
it  worth  from  its  availability  for  valuable  uses! 
Property  is  not  to  be  deemed  worthless  because  the 

been  already  exhausted.     U.   S.  V.  Gettysburg  Electric  R.  Co.,   160 
U.  S.  668. 

4  Baimian  V.  Ross,  167  U.  S.  548. 

5  See  Meyer  v.  Richmond,  172  U.  S.  82. 

19 


290 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Taking 
part  of 
tract  or 
one  of  two 
tracts. 


owner  allows  it  to  go  to  waste,  or  to  be  regarded  as 
valueless  because  he  is  unable  to  put  it  to  any  use. 
Others  may  be  able  to  use  it  and  make  it  subserve 
the  necessities  or  conveniences  of  life.  Its  capabil- 
ity of  being  made  thus  available  gives  it  a  market 
value  which  can  be  readily  estimated.  So  many 
and  varied  are  the  circumstances  to  be  taken  into 
account  in  determining  the  value  of  property  con- 
demned for  public  purposes,  that  it  is  perhaps  im- 
possible to  formulate  a  rule  to  govern  its  appraise- 
ment in  all  cases.  Exceptional  circumstances  will 
modify  the  most  carefully  guarded  rule;  but,  as  a 
general  thing,  we  should  say  that  the  compensation 
to  the  owner  is  to  be  estimated  by  reference  to  the 
uses  for  which  the  property  is  suitable,  having  re- 
gard to  the  existing  business  or  wants  of  the  com- 
munity, or  such  as  may  be  reasonably  expected  in 
the  immediate  future.'*® 

In  determining  a  case  which  arose  in  the  Dis- 
trict of  Columbia,  and  whose  constitutional  aspects 
were,  therefore,  governed  by  the  Fifth  Amendment, 
it  was  held  that  when  only  a  part  of  a  tract  of  land 
is  taken  for  a  public  purpose,  the  value  of  that  part 
is  not  the  sole  measure  of  the  compensation  or  dam- 
ages to  be  paid  the  owner ;  but  the  incidental  injury 
or  benefit  to  the  part  not  taken  is  also  to  be  consid- 
ered."^   But  there  can  be  no  recovery  for  consequen- 


6  Mississippi,  etc.,  Boom  Co.  v.  Patterson,  98  U.  S.  403.  See  also 
New  York  El.  R.  Co.  v.  Fifth  Nat.  Bank,  135  U.  S.  432;  Mononga- 
hela  Nav.  Co.  v.  U.  S.,  148  U.  S.  312;  Backus  v.  Fort  St.  Union 
Depot  Co.,  169  U.  S.  567. 

7Bauman  v.  Ross,  167  U.  S.  548.  See  also  as  to  diminishing 
damages  by  assessments  for  benefits,  Shoemaker  v.  U.  S.,  147  U.  S. 
302. 


DUE  PROCESS  OF  LAW  291 

tial  damages  to  one  of  two  distinct  and  independent    chapter 

tracts,  by  reason  of  the  condemnation  of  the  other,  — 

although  the  two  belong  to  a  single  owner.^ 

When  adequate  compensation  is  provided,  it  is  no  So^For*' 
denial  of  due  process  of  law  in  the  case  of  property  uZV 
rights  taken  by  a  city  for  public  purposes  that  the  ^^""^^  ^' 
compensation  must  be  established  against  the  city 
which  meanwhile  is  in  the  enjo}^nent  of  the  rights 
without  having  instituted   any  condemnation  pro- 
ceedings and  so  is  not  bound  by  a  technical  estoppel 
by  judgment.     This  point  was  ruled  in  a  case  where 
the  height  of  buildings,  either  built  or  to  be  built, 
about  a  public   square  was   limited  by  a   statute, 
which  provided  that  any  person  sustaining  damage 
might  recover  such  damage  "in  the  manner  pre- 
scribed by  law  for  obtaining  pajnnent  for  damages 
sustained  by  any  person  whose  land  is  taken  in  the 
laying  out  of  a  highway. ' '  ^ 

In  the  absence  of  specific  provision  there  is  noth-  Previous 

•^  ■"•  payment^ 

ing  that  requires  compensation  to  be  made  in  ad-  [-on^prect 
vance  of  the  taking  or  appropriation,*  and  conse- 
quently a  previous  payment  or  tender  is  not  essential 
to  due  process  of  law,  provided  adequate  provision 
for  compensation  is  made.^ 

WHAT  AMOUNTS   TO   A    TAKING   OF   PEOPERTY. 

According  to  the  broad  and  equitable  doctrine  of  JJ^p''^^^' 
modem  cases,  it  is  not  necessary  to  constitute  a  "^ajfing... 

8  Sharp  V.  U.  S.,  191  U.  S.  341. 

0  Williams  V.  Parker,  188  U.  S.  491. 

1  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S.  641; 
Sweet  V.  Rechel,  159  U.  S.  402;  Adirondack  R.  Co.  v.  New  York, 
176  U.  S.  335. 

2  Backus  V.  Fort  St.  Union  Depot  Co.,  169  U.  S.  567;  Williams 
V.  Parker,  188  U.  S.  491. 


292 


DUE  PROCESS  OF  LAW 


Chapter 
VIII. 


Physical 
invasion 
necessary. 


Purely 
consequen- 
tial dam- 
ages do  not 
constitute 
taking. 


"taking"  of  property  for  public  purposes  that  the 
actual  occupancy  or  possession  of  the  property 
should  be  assumed  and  its  title  acquired.  A  phys- 
ical interference  with  property  which  substantially 
abridges  the  owner's  right  to  use  and  enjoy  it  and  to 
exclude  others  from  its  use  takes  his  property  to  just 
the  extent  that  he  is  deprived  of  its  enjoyment.^  A 
serious  interruption  to  the  common  and  necessary 
use  of  property  has  been  said  to  be  equivalent  to 
taking  it  within  the  constitutional  provision,  and  it  is 
not  necessary  that  the  land  be  absolutely  taken."* 

This  principle  has  been  confined,  however,  to 
cases  when  the  interference  is  accompanied  with  a 
physical  invasion  of  property  and  practical  ouster 
of  possession,  as  happens  when  lands  are  flooded  by 
the  construction  of  public  works.  "Wliere  the  gov- 
ernment, by  the  construction  of  a  dam,  or  other  pub- 
lic works,  so  floods  lands  belonging  to  an  individual 
as  to  substantially  destroy  their  value,  there  is," 
said  the  United  States  Supreme  Court  in  a  recent 
case,  "a  taking  within  the  scope  of  the  Fifth  Amend- 
ment. While  the  government  does  not  directly  pro- 
ceed to  appropriate  the  title,  yet  it  takes  away  the 
use  and  value ;  when  that  is  done  it  is  of  little  conse- 
quence in  whom  the  fee  may  be  vested. ' '  '^ 

When  there  is  no  physical  invasion,  no  ouster  of 
possession,  and  the  property  owner  suffers  loss 
merely  because  of  the  construction  or  operation  of 
public  works  on  abutting  or  neighboring  property,  it 
is  held  in  a  large  number  of  cases  that  there  is  no 

3  Eaton  V.  Boston,  etc.,  R.  Co.,  51  N.  H.  504. 

♦  Pumpdly  V.  Green  Bay,  etc..  Canal  Co.,   13  Wall.    (U.  S.)    166, 
citing  Angell  on  Watercourses,  §  465a. 
6  U.  S.  V.  Lynch,  188  U.  S.  445,  470. 


DUE  PROCESS  OF  LAW  293 


taking  of  the  property,  the  loss  or  damage  is  conse-    ^^jfj^^ 

quential  merely,  and  the  maxim  damnum  absque  in-  

juria  has  place.  This  doctrine  is  applied  to  im- 
provements in  highways  by  the  government  or  local 
authorities.  ''Persons  appointed  or  authorized  by 
law  to  make  or  improve  a  highway  are  not  answer- 
able for  consequential  damages,  if  they  act  within 
their  jurisdiction  and  with  care  and  skill." «  It  has 
been  so  held  when  the  owner  was  temporarily  ex- 
cluded from  his  water  front  by  the  construction  of  a 
tunnel,"^  or  temporarily  interrupted  in  the  enjoyment 
of  a  mine  by  an  order  for  its  inspection ;  ^  where  the 
access  to  land  abutting  on  a  navigable  river  was  de- 
stroyed by  the  construction,  under  authority  of  an 
Act  of  Congress,  of  a  pier  on  the  submerged  lands  in 
front  of  the  property ;  ^  where,  by  the  construction 
of  a  dike  by  the  United  States  in  the  improve- 
ment of  a  navigable  stream,  the  riparian  owner 
was  deprived  through  the  greater  part  of  the  sea- 
son of  access  to  his  landing  and  his  lands  in  conse- 
quence much  diminished  in  value ;  ^  where  damage 
to  land  was  produced  by  flooding  as  a  result 
of  revetments  constructed  by  the  United  States 
along  a  river  bank  to  prevent  erosion; ^  where 
expense  was  caused  to  a  landowner  by  having  to 

6  Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635. 

7  Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635. 

8  Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co.,  152  U.  S.  160. 
»Scranton   v.   Wheeler,    179   U.   S.    141.     See   also  Manigault  v. 

Springs,  199  U.  S.  473,  in  which  the  same  ruling  was  made  when 
the  erection  of  a  dam  under  the  authority  of  a  State  across  a  navi- 
gable stream  was  claimed  as  an  injury  to  an  owner's  rights  of  navi- 
gation and  of  access  to  lands  above  the  dam. 

1  Gibson  v.  U.  S.,  166  U.  S.  269. 

2  Bedford  v.  U.  S.,  192  U.  S,  217. 


294  DUE  PROCESS  OF  LAW 


Chapter    raise  embankments  around  his  land  in  consequence 
■ —  of  the   building  of   a   dam  across   a  neighboring 


whicT'''"^  stream.3 

leaves 


taking. 


property  Thcre  is  no  taking  of  property  when  the  proceed- 

rights  as  irN  ti*i^ 

tew°°  ings,  instituted  by  the  State  and  claimed  to  consti- 
tute a  taking,  leave  the  rights  of  the  property  owner 
the  same  as  they  were  before.  So,  when  the  owner 
of  a  wharf  extending  into  navigable  water  sought  to 
prohibit  the  State  harbor  commissioners  from  estab- 
lishing harbor  lines,  which  should  embrace  lands  re- 
served by  the  State,  so  as  to  include  his  wharf,  it 
was  held  that  the  proceeding  would  not  deprive  him 
of  property  without  due  process  of  law  and  that 
prohibition  would  not  lie.  ''The  design,"  said  the 
court,  ''of  the  State  law  is  to  prohibit  the  encroach- 
ment by  private  individuals  and  corporations  on 
navigable  waters,  and  to  secure  a  uniform  water 
front;  and  it  does  not  appear  from  relator's  appli- 
cation that  the  defendants  have  threatened  in  any 
manner  to  disturb  him  in  his  possession,  nor  that 
that  which  is  proposed  to  be  done  tends  to  produce 
that  effect.  "Whatever  his  rights,  they  remained  the 
same  after  as  before,  and  the  proceedings,  as  the 
Supreme  Court  said,  could  not  operate  to  constitute 
a  cloud  upon  them  from  the  standpoint  of  relator 
himself,  for,  if  nothing  further  could  lawfully  be 
done  in  the  absence  of  legislation  for  his  protection, 
that  was  apparent.  The  consequences  which  he 
deprecated  were  too  remote  to  form  the  basis  of  de- 
cision. Whatever  private  rights  or  property  he 
has  .    .    .  we  do  not  see  that  he  would  be  deprived 

sManigault  v.  Springs,   199  U.  S.  473;  Mills  v.  U.  S.,  46  Fed. 
Rep.  738. 


DUE  PROCESS  OF  LAW  295 

of  any  of  them  by  the  action  he  has  sought  to  pro-  ^^.^fj^'" 

hibit."* 

Injuries  which  under  a  constitutional  provision  provision 

against    taking    without    compensation    would    be  age  "to'"' 

.  property. 

merely  consequential,  have  been  held  to  require  com- 
pensation when  the  constitution  read  ''taken  or 
damaged ; "  ^  and  this  right  to  damages  for  ' '  injury ' ' 
may  be  acquired  under  an  act  of  the  legislature, 
though  the  constitution  reads  "taken"  merely.® 
So,  it  has  been  held  that  change  in  the  constitutional 
provision  from  a  requirement  of  compensation  for 
property  ''taken"  to  a  like  requirement  for  property 
' '  taken  or  damaged, ' '  although  it  creates  a  prospec- 
tive liability  for  consequential  damages  which  did 
not  before  exist,  is  not  unconstitutional  as  against 
previous  grantees  of  the  State  so  far  as  further  con- 
demnation by  them  is  concerned^ 

Due  process  of  law  is  not  denied  by  the  holding  ^l^[^l°^ 
of  the  highest  court  of  a  State  that  its  constitution  tfafd^m^'" 
makes  no  provision  for  the  recovery  of  consequential  dlprh^ation 
damage  to  property.^    In  so  holding  in  a  case  which  process. 
came  before  the  Federal  Supreme  Court  on  error  to 
the  Supreme  Court  of  Pennsylvania,  it  was  said: 
"We  are  not  authorized  to  inquire  into  the  grounds 
and  reasons  upon  which  the  Supreme  Court  of  Penn- 

4  Yesler  v.  Washington  Harbor  Line  Com'rs,  146  U.  S.  646. 

5  Chicago  V.  Taylor,  125  U.  S.  161.  The  facts  in  this  case  were 
similar  to  those  in  Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635, 
but  the  earlier  case  was  decided  under  the  Illinois  constitution  of 
1848,  which  specified  only  "  taken,"  while  the  later  case  was  gov- 
erned by  the  constitution  of  1870.  To  the  same  eflSect  is  Hot  Springs 
R.  Co.  V.  Williamson,  136  U.  S.  129. 

6  U.S.  V.  Alexander,  148  U.  S.  187;  U.S.  v.  Truesdell,  148  U.  S. 
196;  O'Connor  v.  Pittsburgh,  18  Pa.  St.  187. 

7  Pennsylvania  R.  Co.  V.  Miller,  132  U.  S.  75. 

8  Meyer  v.  Richmond,  172  U.  S.  82. 


296  CUE  PEOCESS  OF  LAW 


Chapter    gylvaiiia  proceeded  in  its  construction  of  the  statutes 

'—  and  constitution  of  that  State,  and,  if  this  record 

presented  no  other  question  except  errors  alleged  to 
have  been  committed  by  that  court  in  its  construction 
of  its  domestic  laws,  we  should  be  obliged  to  hold,  as 
has  been  often  held  in  like  cases,  that  we  have  no 
jurisdiction  to  review  the  judgment  of  the  State 
court,  and  we  should  have  to  dismiss  this  writ 
of  error  for  that  reason.  But  we  are  urged  to 
sustain  and  exercise  our  jurisdiction  in  this  case, 
because  it  is  said  that  the  plaintiff's  property  was 
taken  without  'due  process  of  law,'  and  because  the 
plaintiff  was  denied  'the  equal  protection  of  the 
laws,'  and  these  propositions  are  said  to  present  fed- 
eral questions  arising  under  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States,  to 
which  our  jurisdiction  extends.  It  is  sufficient  for  us 
in  the  present  case  to  say  that,  even  if  the  plaintiff 
could  be  regarded  as  having  been  deprived  of  her 
property,  the  proceedings  that  so  resulted  were  in 
'due  process  of  law.'  The  plaintiff  below  had  the 
benefit  of  a  full  and  fair  trial  in  the  several  courts  of 
her  own  State,  whose  jurisdiction  was  invoked  by 
herself.  In  those  courts,  her  rights  were  measured, 
not  by  laws  made  to  affect  her  individually,  but  by 
general  provisions  of  law  applicable  to  all  those  in 
like  condition. ' '  ® 

NOTICE  AND  HEARING. 

Necessity;         The  duty  of  dccidiug  on  the  public  character  of 

fiower  of  '  n  1        •  •  i.      1 

^fj^iature;   ^hc  usc,  the  expcdicucy  of  employing  emment  do- 

deiegation.    ^^^^^  ^^^  ^l^g  Gxteut  to  which  it  shall  be  employed  is, 

9  Merchant  v.  Pennsylvania  R.  Co.,  153  U.  S.  380. 


DUE  PROCESS  OF  LAW  297 

as  has  been  seen,  for  the  legislature,  unless  the  con-    ^y\l\^^ 

stitution   provides    otherwise,    with    a    supervisory  

right  in  the  courts  to  see  that  the  legislature  does  not 
exceed  its  constitutional  functions.  With  regard  to 
these  questions,  action  by  the  legislature,  unless 
wholly  arbitrary  and  unreasonable,  is,  in  itself,  due 
process  of  law,  and,  where  the  legislature  chooses  to 
act,  the  owner  of  property  condemned  can  not  com- 
plain of  the  want  of  a  hearing  on  these  matters.^ 
But  the  legislature  may  choose  to  delegate  the  de- 
cision of  some  of  these  questions  to  tribunals,  and 
when  the  matter  is  so  delegated  it  becomes  judicial 
and  due  process  of  law  is  not  satisfied  but  by  notice 
and  a  hearing.^ 

The  doctrine  in  Massachusetts  is  exceptional.  ^fts'S"" 
The  courts  of  that  State  hold  that  the  question  is  al- 
ways a  legislative  one,  and  the  fi_nal  decision  rests, 
even  when  the  power  has  been  delegated,  "with  the 
body  or  individuals  to  whom  the  State  has  dele- 
gated the  authority  to  take. "  ^  It  is  not  a  question 
upon  which  the  property  owner  can  demand  a  hear- 
ing except  to  the  extent  that  the  legislature  has 
granted  him  the  right  to  be  heard.^ 

Usually,    however,    it   is    held    that    an   agency  |'j'°^>/j°n^^. 
vested  with  the   power   of  eminent   domain   must, 
upon  a  proper  issue,  establish  the  fact  of  the  ne- 
cessity of  the  particular  taking  to  the  satisfaction 


1  People  V.  Smith,  21  N.  Y.  595;  People  v.  Adirondack  R.  Co.,  160 
K  Y.  225. 

2  See  svpra,  p.  273.     Compare  supra,  pp.  236,  248. 

3  Lynch  v.  Forbes,  161  Mass.  302. 

*Holt  r.  Somerville,  127  Mass.  408;  Lynch  v.  Forbes,  161  Mass. 
302,  42  Am.  St.  Rep.  402;  Old  Colony  R.  Co.,  Petitioner,  163  Mass. 
356;  Burnett  r.  Boston,  173  Mass.  173. 


ing  hearing 
on  neces- 
sity. 


298  DUE  PROCESS  OF  LAW 

Chapter  Qf  either  the  court  °  or  the  jury  *^  or  a  statutory 
tribunal/  as  required  by  the  local  laws.  But  agen- 
cies to  which  the  power  of  eminent  domain  is  dele- 
gated are  vested  with  a  large  discretion  to  de- 
termine the  amount  of  property  necessary  for  the 
public  use,  a  discretion  always  subordinate,  how- 
ever, to  the  right  of  the  courts  to  prevent  an  abuse 
of  the  power.^  Consequently  in  some  States  such 
an  agency  need  only  show  that  it  is  lawfully  in 
possession  of  the  power  of  eminent  domain  and  that 
the  particular  property  whose  condemnation  is 
sought  is  necessary  for  the  construction  of  the  ap- 
propriate works,  which  have  been  located  thereon  in 
the  i^roper  manner.'^  In  other  States  the  question 
of  necessity  can  not  be  raised  in  the  condemnation 
proceedings,  but  the  property  owner  is  still  not  with- 
out remedy  against  an  abuse  of  discretion  on  the 
part  of  those  to  whom  the  power  of  eminent  domain 
is  delegated;  he  may  have  the  necessity  determined 

5  0'Hare  v.  Chicago,  etc.,  R.  Co.,  139  111.  151,  158,  161;  Tracy  v. 
Elizabethtown,  etc.,  R.  Co.,  80  Ky.  259;  Matter  of  St.  Paul,  etc.,  R. 
Co.  34  Minn.  227 ;  Matter  of  New  York  Cent.  R.  Co.,  66  N.  Y.  407 ; 
Erie  R.  Co.  r.  Steward,  170  N.  Y.  172,  178;  Wisconsin  Cent.  R.  Co. 
V.  Cornell  University,  52  Wis.  537;  Wisconsin  Cent.  R.  Co.  v.  Kneale, 
79  Wis.  89;  South  Carolina  R.  Co.  v.  Blake,  9  Rich.  (S.  Car.)  228; 
Baltimore,  etc.,  R.  Co.  v.  Pittsburg,  etc.,  R.  Co.,  17  W.  Va.  812. 

6  Matter  of  Powers,  29  Mich.  504  (the  Michigan  constitution  re- 
quiring the  submission  of  the  necessity  to  a  jury). 

7  Sand   Creek  Lateral   Irrigation   Co.  v.  Davis,    17  Colo.   326. 

8  Atlantic,  etc.,  R.  Co.  v.  Penny,  119  Ga.  479;  Schuster  r.  Sanitary 
Dist.,  177  111.  620. 

9  San  Francisco,  etc.,  R.  Co.  v.  Leviston,  134  Cal.  412,  415;  Pasa- 
dena V.  Stimson,  91  Cal.  238;  O'Hare  V.  Chicago,  etc.,  R.  Co.,  139 
111.   151. 

In  Michigan  under  flie  constitutional  provision  the  showing  of 
necessity  is  not  satisfied  by  such  proof.  Matter  of  Powers,  29  Mich. 
504. 


DUE  PROCESS  OF  LAW  299 


on  application  to  a  court  of  equity  for  an  injunc-    ^^.^jfj^'' 
tion.^ 

The  question  of  compensation  is  in  its  nature  a  to^cJmp^en! 
judicial  question,  which  involves  directly  the  prop- 
erty rights  of  private  individuals,  and  can  be  de- 
cided only  after  notice  and  a  hearing  before  some 
impartial  tribunal.^  The  nature  of  the  tribunal  is 
for  the  legislature  to  determine.  *'A11  that  is  essen- 
tial is  that  in  some  appropriate  way,  before  some 
properly  constituted  tribunal,  inquiry  shall  be  made 
as  to  the  amount  of  compensation,  and,  when  this  has 
been  provided,  there  is  that  due  process  of  law 
which  is  required  by  the  Federal  Constitution."^ 
This  duty  may  be  devolved  upon  the  same  body  who 
determine  the  necessity  of  the  taking  or  upon  a  sepa- 
rate body.^  Again,  the  duty  of  determining  the 
amount  of  damage  to  the  property  owner  may  or 
may  not  be  united  with  that  of  determining  special 
benefits  received  by  the  property  under  laws  which 
require  such  benefits  to  be  deducted  from  the 
damage.^ 

1  Atlantic,  etc.,  R.  Co.  v.  Penny,  119  Ga.  479. 

2  People  V.  Adirondack  R.  Co.,  160  N.  Y.  225,  affirmed  176  U.  6. 
335. 

3  Backus  V.  Fort  St.  Union  Depot  Co.,  169  U.  S.  567.  And  see 
Pearson  v.  Yewdall,  95  U.  S.  296;  Adirondack  R.  Co.  v.  New  York, 
176  U.   S.  335. 

When  inquiry  has  been  legally  made  by  the  properly  constituted 
tribunal  (which  in  this  case  consisted  of  commissioners)  there  is  no 
need  of  provision  for  appeal;  their  determination  may  be  final. 
Long  Island  Water  Supply  Co.  V.  Brooklyn,  166  U.  S.  694. 

4  Backus  r.  Fort  St.  Union  Depot  Co.,  169  U.  S.  567. 
6  Bauman  v.  Ross,  167  U.  S.  548. 


CHAPTER  IX. 

THE   POLICE   POWER. 
CHAKACTERISTICS  AND  LIMITATIONS. 

Chapter    "  I  ^JJE  policG  power  lias  been  defined  by  Chief  Jus- 


IX. 


T 


Alger, ^  as  "the  power  vested  in  the  legislature_ 
by  the  Constitution,  to  make,  ordain,  and  establish 
all  manner  of  wholesome  and  reasonable  laws,  stat- 
utes, and  ordinances,  either  with  penalties  or  with- 
out, not  repugnant  to  the  Constitution,  as  they  shall 
judge  to  be  for  the  good  and  welfare  of  the  common- 
wealth and  of  the  subjects  of  the  same."  In  Barhier 
V.  Connolly^  the  object  of  the  police  power  is  stated 
to  be  "to  prescribe  regulations  to  promotethe 
health,  peace,  morals,  education,  and  good  order  of 
the  people,  and  to  legislate  so  as  to  increase  the  in- 
dustries of  the  State,  develop  its  resources,  and  add 
to  its  wealth  and  prosperity."  The  sphere  of  the 
police  power  is  thus  stated  in  Lawton  v.  Steele:^ 
I  "It  is  universally  conceded  to  include  everything  es- 
sential to  the  public  safety,  health,  and  morals,  and 
to  justify  the  destruction  or  abatement,  by  summary 
proceedings,  of  whatever  may  be  regarded  as  a  pub- 
lic nuisance.  Under  this  power  it  has  been  held  that 
the  State  may  order  the  destruction  of  a  house  fall- 

17  Cush.    (Mass.)   53.     And  see  Manigault  v.  Springs,  199  U.  S. 
473. 

2  113  U.  S.  31. 
3 152  U.  S.  133. 

300 


DUE  PROCESS  OF  LAW 


ing  to  decay  or  otherwise  endangering  the  lives  of    Chgiter 

passers-by;  the  demolition  of  such  as  are  in  the  path  

of  a  conflagration;  the  slaughter  of  diseased  cattle; 
the  destruction  of  decayed  or  unwholesome  food; 
the  prohibition  of  wooden  buildings  in  cities;  the 
regulation  of  railways  and  other  means  of  public 
conveyance,  and  of  interments  in  burial  grounds; 
the  restriction  of  objectionable  trades  to  certain  lo- 
calities; the  compulsory  vaccination  of  children; 
the  confinement  of  the  insane  or  those  afflicted  with 
contagious  diseases ;  the  restraint  of  vagrants,  beg- 
gars, and  habitual  drunkards ;  the  suppression  of  ob- 
scene publications  and  houses  of  ill  fame;  and  the 
prohibition  of  gambling  houses  and  places  where 
intoxicating  liquors  are  sold.  Beyond  this,  how- 
ever, the  State  may  interfere  wherever  the  publio 
interests  demand  it,  and  in  this  particular  a  large 
discretion  is  necessarily  vested  in  the  legislature  to 
determine,  not  only  what  the  interests  of  the  publio 
require,  but  what  measures  are  necessary  for  the 
protection  of  such  interests." 

In  this  wide  sense  the  police  power  is  understood  i^^'e'^ower^s 
to  embrace  not  only  the  preservation  of  the  order,  e?aiflgis- 

lative  pow- 

peace,  health,  morals,  and  safety  of  the  community,  1;^^^;^^^"- 
but  also  all  legislation  looking  to  the  well  being  of 
society  in  its  economic  and  intellectual  aspects.'^  It 
is  sometimes  restricted  to  the  first  branch  of  activi- 
ties merely,  namely,  the  maintenance  of  morals, 
health  and  safety.  As  so  limited  it  occupies  a  defi- 
nite field  comparable  with  the  powers  of  eminent  do- 
main and  taxation,  and  is  so  essential  to  the  very 
being  of  the  State,  that  it  can  not  be  curtailed  by 

4  See  Manigault  v.  Springs,  199  U.  S.  473. 


302  DUE  PROCESS  OF  LAW 

Chapter    contract  on  the  part  of  tlie  State.^     In  its  wider 

'■ —  meaning  it  loses  definiteness.    It  embraces  a  vast 

mass  of  miscellaneous  legislation.  It  may  or  may 
not  be  subject  to  the  contract  clause  of  the  Federal 
Constitution.  It  is  nothing  more  nor  less  than  a 
name  for  the  residual  powers  of  sovereignty  after 
shearing  off  the  powers  of  taxation  and  the  eminent 
domain.  In  the  License  Cases,^  Chief  Justice  Taney 
asked  the  question,  "What  are  the  police  powers  of 
a  state?"  and  answered  it  as  follows:  ''They  are 
nothing  more  or  less  than  the  powers  of  government 
inherent  in  every  sovereignty  to  the  extent  of  its 
dominions.  And  whether  a  state  passes  a  quaran- 
tine law,  or  a  law  to  punish  offenses,  or  to  establish 
courts  of  justice,  or  requiring  certain  instruments  to 
be  recorded,  or  to  regulate  commerce  within  its  own 
limits,  in  every  case  it  exercises  the  same  power; 
that  is  to  say,  the  power  of  sovereignty,  the  power 
to  govern  men  and  things  within  the  limits  of  its 
dominion."  Some  authors  have  pointed  out  the 
desirability  of  separating  the  police  power  in  its  nar- 
rower sense  from  the  general  residual  legislative 
power  which  goes  under  that  name,  but  the  courts 
use  the  term  in  its  widest  meaning,  and  in  many  in- 
stances it  might  be  difficult  and  embarrassing  to  say 
on  which  side  of  the  line  dividing  the  pure  police 
powers  from  general  legislative  powers  a  given  case 
should  fall.  Many  instances  of  the  application  of 
the  legislative  power  as  applied  to  procedure,  evi- 
dence, remedies  and  the  like  have  already  been  con- 
sidered in  other  connections.'^ 

5  See  infra,  p.  304. 

«5  How.    (U.  S.)   504,  fiSS. 

7  See  especially  Chapter  IV,  p.  138,  and  section  on  Proced/ure,  p.  159. 


DUE  PROCESS  OF  LAW  303 


The  legislature  may,  if  it  see  fit,  delegate  the  pow-    Chapter 

er  to  pass  local  laws  or  ordinances  to  municipal  cor-  

poratious,  which  are  but  subdivisions  of  the  State.^  to^munid" 

palities. 

Consequently,  under  the  general  police  power,  the 
legislature  may  delegate  to  a  municipality  the  au- 
thority to  pass  ordinances  for  the  preservation  of 
the  health  or  the  promotion  of  the  comfort,  conveni- 
ence, good  order  and  general  welfare  of  its  citizens, 
provided  always  that  they  are  not  in  conflict  with 
constitutional  provisions.^ 

The  legislature  may  likewise  charge  public  offi-  ^f^fj^'^" 
eials  with  the  duty  of  carrying  into  effect  a  scheme  cfar'^id 
of  police  regulation  devised  by  it,  and  the  duties  of  dli  dudes. 
such  officials  may  be  made  merely  administrative,^ 
or  judicial  or  quasi-judicial  without  violating  the 
constitutional  provision  for  due  process,  if,  on  ques- 
tions of  fact  involving  private  rights,  notice  and 
hearing  is  provided. ^ 

A  characteristic  of  the  action  of  the  police  and  Does  not 

■^  require 

the  legislative  power  is  that  it  does  not  require  the  o/prop?" 
taking  of  private  property  for  public  use,  in  a  con-  "^^' 
stitutional  sense,  and  does  not,  therefore,  demand  as 
a  condition  of  its  rightful  exercise  that  compensation 
be  made.    This  matter  is  considered  in  detail  else- 
where.^ 

Police  legislation  on  tlie  part  of  the  State  may  be 
invalid  because  it  trenches  on  the  sphere  of  the  na- 

8  Fischer  v.  St.  Louis,  194  U.  S.  361,  370.     See  supra,  p.  212. 

9  California    Reduction    Co.    V.    Sanitary    Reduction    Works,    199      , 
U.  S.  306;  State  v.  Summerfield,  107  N.  Car.  895;  State  v.  Tenant, 
110  N.  Car.  609. 

1  Reagan  v.  Farmers'  L.  &  T.  Co.,  1.54  U.  S.  362. 

2  Reetz  V.  Michigan,  188  U.  S.  505.     See  also  infra,  p.  370. 

3  See  supra,  p.  203. 


304 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Regulation 
of  com- 
merce as 
affecting 
States'  po- 
lice powers 


Not  extra- 
territorial. 


Obligation 

of  con- 
tracts and 
the_  States' 
police 
power. 


tional  government  under  the  Federal  Constitution.^ 
Laws  which,  enacted  under  the  plea  of  the  police 
power,  are  in  fact  a  regulation  of  interstate  com- 
merce are  void.^  But  a  statute  is  not  a  regiilation 
of  commerce  because  it  may  incidentally  or  indirect- 
ly affect  commerce.®  While  State  laws  yield  to  acts 
of  Congress  passed  in  execution  of  powers  conferred 
by  the  Constitution,  the  mere  grant  to  Congress  of 
the  power  to  regulate  commerce  with  foreign  na- 
tions and  among  the  States  does  not  of  itself  and 
without  legislation  by  Congress  impair  the  authority 
of  the  States  to  establish  reasonable  police  regula- 
tions.'^ 

Again,  police  legislation  which  purports  to  deal 
with  subjects  beyond  the  territorial  jurisdiction  is 
opposed  to  the  conception  of  due  process  of  law  and 
void.^ 

^^^lile  it  is  settled  that  the  State  can  not  divest 
itself  by  contract  of  the  police  power  in  its  restricted 
sense,  so  as  to  deprive  itself  of  the  capacity  to  legis- 
late in  the  interests  of  the  lives,  health,  or  morals  of 
its  citizens,^  many  regulations  controlling  business 
and  economic  conditions  in  the  interests  of  the  gen- 

4  Jacobson  v.  Massachusetts,  197  U.  S.  11,  25. 

5  Hannibal,  etc.,  R.  Co.  v.  Husen,  95  U.  S.  465;  Morgan's  Steam- 
ship Co.  V.  Louisiana,  118  U.  S.  455,  464;  Schollenberger  v.  Pennsyl- 
vania, 171  U.  S.  1. 

6  Missouri,  etc.,  R.  Co.  v.  Haber,  169  U.  S.  618;  Reid  v.  Colorado, 
187  U.  S.  137. 

7  New  York,  etc.,  R.  Co.  v.  New  York,  165  U.  S.  G28. 

8  Allgeyer  v.  Louisiana,  165  U.  S.  578.     See  infra,  p.  351  et  seq. 

9  Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25;  Stone  v.  Missis- 
sippi, 101  U.  S.  814;  Butchers'  Union  Slaughter-House,  etc.,  Co.  v. 
Crescent  City  Live  Stock  Landing,  etc.,  Co.,  Ill  U.  S.  740;  New 
Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650;  Wabash  R. 
Co.  V.  Defiance,  167  U.  S.  88;  Chicago,  Burlington,  etc..  R.  Co.  V. 
Nebraska,  170  U.  S.  57;  Manigault  v.  Springs,  199  U.  S.  473, 


DUE  PROCESS  OF  LAW  305 

eral  welfare  can  not  be  enforced  against  a  contract    chapter 

existing  between  the  State  and  persons  or  corpora-  

tions  whose  affairs  are  the  subject  of  regulation.^ 
Thus  the  State's  right  to  regulate  the  charges  by 
railroads  and  other  public  service  corporations  may 
be  surrendered  to  such  a  company  by  the  stipula- 
tions of  its  charter  or  other  legislation,  amounting  to 
a  contract.- 

It  has  been  repeatedly  declared  by  the  Supreme  JJifcf^*"' 
Court  of  the  United  States  that  the  limitations  on  chrngeTby 

'    Fourteenth 

State  action  contained  in  the  Fourteenth  Amendment  ^™^\"'^- 
were  not  designed  to  limit  or  interfere  with  the  exer- 
cise of  the  police  power  on  the  part  of  the  States.^ 
This  declaration  only  means  that  the  sphere  of  the 
legitimate  police  power  is  the  same  under  the 
amendment  as  without  it.*  What  is  the  legitimate 
sphere  of  the  police  power  is  under  that  amendment 
a  question  for  the  final  determination  of  the  Federal 
Supreme  Court,  and  to  be  tested  by  the  body  of  doc- 
trines which  have  grown  up  in  its  decisions,  in  the 
interpretation  of  the  National  Constitution. 

1  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650; 
Railroad  Commission  Cases,   116  U.   S.  307,  325. 

2  Georgia  R.,  etc.,  Co.  v.  Smith,  128  U.  S.  174,  179;  Reagan  V. 
Farmers'  L.  &  T.  Co.,  154  U.  S.  362,  393;  Knoxville  Water  Co.  v. 
Knoxville,  189  U.  S.  434. 

sBarbier  v.  Connolly,  113  U.  S.  31;  Jones  v.  Brim,  165  U.  S.  180, 
182;  L'Hote  v.  New  Orleans,  177  U.  S.  587;  Cunnius  v.  Reading 
School  Dist.,   198  U.  S.  469. 

4 "  The  States  possess,  because  they  have  never  surrendered,  the 
power  —  and  therefore  municipal  bodies,  under  legislative  sanction, 
may  exercise  the  power  —  to  prescribe  such  regulations  as  may  be 
reasonable,  necessary,  and  appropriate  for  the  protection  of  the  pub- 
lic health  and  comfort."  California  Reduction  Co.  v.  Sanitary  Re- 
duction Works,  199  U.  S.  306. 

20 


306 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Due  proc- 
ess requires 
reasonable- 


Primarily 
for  legisla- 
ture, ulti- 
mately for 
court. 


ITS    EXEECISE    MUST    BE    KEASONABLE. 

A  general  limitation  on  the  exercise  of  the  police 
power  is  found  in  the  idea  of  reasonableness ;  that  is, 
to  be  valid  a  statute  must  be  reasonable  and  enacted 
in  good  faith ;  °  for  every  merely  arbitrary  and  ca- 
pricious fiat  of  the  legislature  is  out  of  place  in  "a 
government  of  laws  and  not  of  men,"  and  is  irrec- 
oncilable with  the  conception  of  due  process  of  law.® 

As  the  reasonableness  of  legislation  is  a  matter 
pre-eminently  for  the  consideration  of  the  law-mak- 
ing branch  of  the  government,  the  court  will  not  ex- 
amine the  question  de  novo  and  substitute  its  judg- 
ment for  that  of  the  legislature,  but  will  pronounce  a 
law  void  only  when  it  is  merely  arbitrary  or  not  en- 
acted in  good  faith  J  ' '  No  court, ' '  it  was  remarked 
in  a  recent  case,  ' '  would  declare  a  usury  law  uncon- 
stitutional, even  if  every  member  of  it  believed  that 
Jeremy  Bentham  had  said  the  last  word  on  that  sub- 


5  Plessy  V.  Ferguson,  163  U.  S.  550. 

6  See  supra,  pp.  51,  61,  142. 

7Yiek  Wo  v.  Hopkins,  118  U.  S.  356;  Powell  v.  Pennsylvania,  127 
U.  S.  677,  684;  Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.  455, 
459;  Powell  V.  Pennsylvania,  127  U.  S.  677,  684;  L'Hote  v.  New 
Orleans,  177  U.  S.  587;  Jacobson  v.  Massachusetts,  197  U.  S.  II,  30, 
31;  Cunnius  V.  Reading  School  Dist.,  198  U.  S.  469;  Com.  v.  Pear, 
183  Mass.  242,  247;  Holden  V.  Hardy,  169  U.  S.  366;  Lake  Shore, 
etc.,  R.  Co.  v.  Ohio,  173  U.  S.  285,  301;  Health  Dept.  v.  Trinity 
Church,  145  N.  Y.  32,  42. 

Whether  the  application  of  a  police  regulation,  reasonable  in  it- 
self, is  in  the  circumstances  of  an  individual  case  reasonable  or  arbi- 
trary, is  a  question  of  fact,  and  the  defense  of  unreasonableness 
cannot  be  asserted  in  the  United  States  Supreme  Court.  When  the 
trial  court  has  determined  after  hearing  that  the  requirement  of  the 
improvement  is  reasonable  in  the  circumstances,  and  their  finding 
has  been  affirmed  in  the  highest  State  court,  the  question  is  one 
of  fact  which  has  been  conclusively  settled.  Minneapolis,  etc.,  R. 
Co.  V.  Minnesota,  193  U.  S.  53. 


DUE  PROCESS  OF  LAW  307 


ject,  and  had  shown  for  all  time  that  such  laws  did    chnpter 


more  harm  than  good.  The  Sunday  laws,  no  doubt, 
would  be  sustained  by  a  bench  of  judges,  even  if 
every  one  of  them  thought  it  superstitious  to  make 
any  day  holy.  Or,  to  take  cases  where  opinion  has 
moved  in  the  opposite  direction,  wagers  may  be  de- 
clared illegal  without  the  aid  of  statute,  or  lotteries 
forbidden  by  express  enactment,  although  at  an 
earlier  day  they  were  thought  pardonable  at  least. 
The  case  would  not  be  decided  differently  if  lotteries 
had  been  lawful  when  the  Fourteenth  Amendment 
became  law,  as  indeed  they  were  in  some  civilized 
states."  ^  Ultimately,  then,  reasonableness  must  be 
passed  upon  by  the  courts,  in  the  exercise  of  their 
proper  function  of  keeping  the  legislature  within 
constitutional  bounds,  and  reasonableness  may  in 
this  sense,  and  in  this  sense  only,  be  called  a  judicial 
question. 

Varying  aspects  of  the  principle  may  be  stated,  unconstitu- 
A  law  or  ordinance  not  enacted  in  good  faith  for  the  ilcele^^- 

^  lation. 

promotion  of  the  public  good  but  passed  from  the 
sinister  motive  of  annoying  or  oppressing  a  particu- 
lar person  or  class  is  invalid  as  offending  the  funda- 
mental principle  of  the  generality  of  the  laws.^  If 
the  legislature  in  passing  a  law  exercises  the  right  of 
classification  over  persons  or  things,  the  classifica- 
tion must  be  founded  on  a  natural  basis,  on  differ- 
ences not  arbitrary  merely,  but  such  as  in  the  nature 
of  things  furnish  a  reasonable  ground  for  separate 
laws  and  regulations.^  ^.The  police  power  can  not  be 

lOtis  V.  Parker,  187  U.  S.  606,  609, 

2  Yick  Wo  V.  Hopkins,  118  U.  S.  356;  Dobbins  v.  Los  Angeles,  195 
U.  S.  223. 

3  Gulf,  etc.,  R.  Co.  V.  Ellis,  165  U.  S.  150;  State  v.  Loomis,  115 
Mo.  307,  314, 


308 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


General 
and  local 
police  reg- 
ulation. 


interposed  to  support  statutes  which  have  no  pos- 
sible tendency  to  protect  the  community  or  promote 
the  public  welfare,  but  which,  having  no  substantial 
relation  to  the  public  welfare,  arbitrarily  deprive  the 
owner  of  liberty  or  property."*'  It  has  been  said  that 
if  jDolice  regulations  passed  by  the  State  in  the  in- 
terest of  public  health,  morals  or  safety,  ''amount 
to  a  denial  to  persons  within  its  jurisdiction  of  the 
equal  protection  of  the  laws,  they  must  be  deemed 
unconstitutional  and  void."^  But  this  is  only  say- 
ing in  other  words  that  a  statute  which  arbitrarily 
selects  certain  members  of  the  community  for  regu- 
lation is  not  a  valid  exercise  of  the  police  power. 

The  test  of  reasonableness  is  aj^plicable  alike  to 
the  statutes  of  the  legislature  passed  in  the  exercise 
of  the  police  power  and  to  the  acts  of  local  municipal 
legislative  bodies  acting  under  powers  delegated  by 
the  legislature.^  The  English  courts  have  from  time 
immemorial  applied  the  test  to  municipal  legisla- 
tion,"^ and  our  courts  assume  a  much  more  untram- 
melled attitude  in  examining  the  reasonableness  of 
municipal  ordinances.^    Yet  ''every  intendment  is 


4Mugler  V.  Kansas,  123  U.  S.  623,  661,  669;  Lawton  v.  Steele, 
152  U.  S.  133;  Holden  v.  Hardy,  169  U.  S.  366,  398;  California  Re- 
duction Co.  V.  Sanitary  Reduction  Works,  199  U.  S.  306;  Matter  of 
Jacobs,  98  N.  Y.  98,  .'SO  Am.  Rep.  636;  Colon  V.  Lisk,  153  N.  Y.  188. 

5  Connolly  v.  Union  Sewer  Pipe  Co.,   184  U.  S.  540. 

ePlessy  v.  Ferguson,  163  U.  S.  550. 

7  See  supra,  p.  25. 

8  "  While  the  courts,"  says  Professor  Freund,  "  profess  to  regard 
the  State  legislature  as  a  co-ordinate  power,  they  frankly  treat  the 
municipal  authorities  as  subordinate,"  and  judge  each  ordinance 
or  regulation  on  its  own  merits.  Freund,  Police  Power,  §  142.  In 
examining  municipal  legislation  there  is  the  question,  not  only  of 
the  harmony  of  the  legislation  with  the  constitution,  which  must 
arise  equally  as  to  nets  of  the  legislatnre,  but  there  is  the  additional 


DUE  PROCESS  OF  LAW  309 


to  be  made  in  favor  of  the  lawfulness  of  the  exercise    Chapter 

of  municipal  power  making  regulations  to  promote  

the  public  health  and  safety,  and  it  is  not  the  prov- 
ince of  courts,  except  in  clear  cases,  to  interfere  with 
the  exercise  of  the  power  reposed  by  law  in  munici- 
pal corporations  for  the  protection  of  local  rights 
and  the  health  and  welfare  of  the  people  in  the  com- 
munity. ' '  ^ 

Police  Poiver  or  Eminent  Domain  as  Dependent  on 
Reasonableness. 

When  legislation  has  the  effect  of  prohibiting  a  Swee^ 
use  which  is  incidental  to  property  generally,  or  e^and'eZ- 

nent  do- 

provides  for  the  destruction  of  property  in  particular  "^ifj^sl"'' 
conditions  as  constituting  a  nuisance,^  it  has  been 
said  that  its  validity  as  police  regulation,  requiring 
no  compensation,  depends  on  its  extent,  or  on  the 
reasonableness  of  the  provision  in  question;  that 
when  a  statute  oversteps  this  line  of  reasonableness 
it  becomes  an  exercise  of  the  eminent  domain  and 
compensation  is  necessary,  so  that,  in  such  a  case, 
if  no  provision  is  made  for  compensation,  the  act  is 
invalid.  In  Massachusetts,  it  has  been  held  that  an 
act  forbidding  the  erection  of  fences  unnecessarily 
exceeding  six  feet  in  height  from  motives  of  malevo- 
lence and  to  annoy  one's  neighbors  was  a  valid  regu- 
lation of  the  use  of  property  rights  not  amounting  to 
a  taking  of  property  under  the  law  of  eminent  do- 
main.    The  court  said :    *  *  Some  small  limitations  of 

question  whether  the  ordinance  is  in  harmony  with  the  general  laws 
of  the  State. 

» Dobbins  v.  Los  Angeles,  195  U.  S.  22,3,  235;  California  Reduc- 
tion Co.  V.  Sanitary  Reduction  Works,  199  U.  S.  306. 

1  See  infra,  p.  337. 


310  DUE  PROCESS  OF  LAW 


Chapter    previously  existing  rights  incident  to  property  may 
'■ —  be  imposed  for  the  sake  of  preventing  a  manifest 


evil ;  larger  ones  could  not  be  except  by  tne  exercise 
of  the  right  of  eminent  domain.  "^  When  legisla- 
tion providing  for  the  killing  of  diseased  animals 
was  in  question,  it  was  declared:  ''We  can  not  ad- 
mit that  the  legislature  has  an  unlimited  right  to 
destroy  property  without  compensation,  on  the 
ground  that  destruction  is  not  an  appropriation  to 
public  use ;  .  .  .  when  a  healthy  horse  is  killed  by  a 
public  officer,  acting  under  a  general  statute,  for  fear 
that  it  should  spread  disease,  the  horse  certainly 
would  seem  to  be  taken  for  public  use,  as  truly  as 
if  it  were  seized  to  drag  an  artillery  wagon.  The 
public  equally  appropriate  it,  whatever  they  do  with 
it  afterwards."^  In  accordance  with  these  princi- 
ples a  statute  has  been  held  void  which  declared  par- 
ticular encroachments  on  the  merely  private  rights 
of  others  a  nuisance  punishable  with  forfeiture  of 
the  property  employed  in  the  encroachment,  without 
regard  either  to  the  extent  of  the  trespass,  or  the 
intentional  wrongdoing  or  innocence  of  the  owner, 
or  the  value  of  the  property  to  be  forfeit'ed.^ 
Use  of  Overstepping  the  bounds  of  reasonable  regula- 

property  i.  ±        o 

gr^adver-  |jqjj  ^jj^j  amouutiug  to  a  taking  of  property  without 
compensation  has  been  held  to  be  a  statute  or  ordi- 
nance prohibiting  the  use  of  private  property  for  ad- 
vertising purposes.  The  purpose  of  such  a  regula- 
tion is  only  the  aesthetic  enjo^T-nent  of  members  of  the 

2  Rideout  v.  Knox,  148  Mass.  368,  372,  373,  per  Holmes,  J. 

3Miyer  v.  Horton,  152  Mass.  540.  See  also  Lawton  v.  Steele, 
152  U.  S.  133.  But  apparently  no  such  limitation  was  thought  of 
in  Mugler  v.  Kansas,  123  U.  S.  623,  and  per  Field,  J.,  dissenting,  678. 

4  Colon  V.  Lisk,  153  N.  Y.  195. 


DUE  PROCESS  OF  LAW  311 


public,  and  it  is  unreasonable  in  view  of  the  end  to  be    Chapter 

attained  to  deprive  persons  of  a  recognized  and  valu-   

able  use  of  property  without  compensation.  Of  the 
use  of  property  for  advertising,  the  Massachusetts 
court  observed:  "This  has  come  to  be  an  ordinary 
and  remunerative  use  of  lands  near  largely  traveled 
streets,  parkways,  public  parks,  railroads,  and  other 
places  frequented  in  numbers  by  the  public.  It  is  as 
natural  a  use  of  such  lands  as  is  the  use  of  store 
fronts  and  show  windows  for  display  of  goods  kept 
for  sale,  or  for  other  modes  of  advertising.  It  re- 
sembles the  placing  of  advertising  pages  on  each  side 
of  the  literary  portion  of  a  periodical  or  the  placing 
in  street  cars  or  railway  stations  of  advertisements 
disconnected  with  the  business  of  transportation.  All 
these  at  present  are  usual,  common,  and  profitable 
uses  of  property,  of  which  every  one  sees  daily  nu- 
merous instances."  ^  But  when  the  end  is  adequate, 
particular  classes  of  signs  may  be  prohibited  with- 
out compensation,  as,  for  instance,  immoral  adver- 
tisements, or  signs  which  are  a  menace  to  publio 
safety.® 

Classification. 

Classification  is  controlled  both  by  the  clause  of 
the  Fourteenth  Amendment  forbidding  the  denial  of 
due  process  of  law  and  that  requiring  the  equal  pro- 
tection of  the  laws.  Perhaps  the  same  effects  might 
have  been  attained  by  the  due  process  clause  alone 
and  it  will  not  be  possible  to  separate  the  cases  un- 

5  Com.  V.  Boston  Advertising  Co.,    (Mass.    1905)    74  N.  E.  Rep. 
601.     To  the  same  effect  is  People  v.  Greene,  85  N.  Y.  App.  Div.  400. 

6  people  V.  Greene,  85  N.  Y.  App.  Div.  400,  distinguishing  Roches- 
ter t;.  West,  164  N.  Y,  510. 


312 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Subjects 
of  proper 
regulation 
cannot 
complain 
that  others 
are  not 
'egulated. 


Specially 
dangerous 
employ- 
ments. 


der  the  two  clauses  with  rigid  distinctness.  As  has 
been  seen,  both  clauses  are  satisfied  when  a  law  is 
founded  on  some  natural  basis  of  classification  and 
all  persons  within  its  scope  are  treated  alike  under 
similar  circumstances,"^  and  this  is  but  an  application 
of  the  wider  principle  of  reasonableness. 

When  regulations  are  imposed  upoTi  one  trade  or 
business  on  valid  grounds,  it  is  not  a  subject  of  com- 
plaint that  other  kinds  of  business  are  not  subjected 
to  like  regulation.  ' '  The  specific  regulations  for  one 
kind  of  business,  which  may  be  necessary  for  the 
protection  of  the  public,  can  never  be  the  just  ground 
of  complaint  because  like  restrictions  are  not  im- 
posed upon  other  business  of  a  different  kind.  The 
discriminations  which  are  open  to  objection  are  those 
where  persons  engaged  in  the  same  business  are  sub- 
jected to  different  restrictions,  or  are  held  entitled  to 
different  privileges  under  the  same  conditions.  It 
is  only  then  that  the  discrimination  can  be  said  to 
impair  that  equal  right  which  all  can  claim  in  the 
enforcement  of  the  laws. ' '  ^ 

Employments  involving  special  dangers  either  to 
those  engaged  in  them  or  to  the  public  may  be  made 
the  subject  of  legislation  under  the  police  power,  and 
the  nature  of  the  employment  justifies  the  exercise 
of  the  legislative  powers  and  prevents  the  act  being 
a  denial  of  due  process  of  law.  Upon  this  ground, 
statutes  abolishing  the  fellow-servant  rule  as  applied 
to  the  employees  of  railroad  corporations  have  been 
sustained.^     The  danger  to  cattle  straying  on  rail- 

7  See  supra,  p.  58. 

8  Soon  Hing  v.  Crowley,  113  U.  S.  703.     See  also  Missouri,  etc., 
R.  Co.  V.  May.  194  U.  S.  267;  Ohio  V.  Dollison,  194  U.  S.  445. 

8  Missouri  Pac.  R,  Co.  v.  Mackey,   127  U.  S.  206;   Chicago,  etc.. 


DUE  PROCESS  OF  LAW  313 


roads  justifies  a  law  requiring  railroad  companies  to    chapter 


Harmless 


fence  their  rights  of  way  and  providing  for  punitive 
damages  when  cattle  are  killed  in  the  absence  of 
fences.^  ''The  statutes  of  nearly  every  State  of  the 
Union,"  said  the  Federal  Supreme  Court,  "provide 
for  the  increase  of  damages  where  the  injury  com- 
plained of  results  from  the  neglect  of  duties  imposed 
for  the  better  security  of  life  and  property.  .  .  . 
And  experience  favors  this  legislation  as  the  most 
efficient  mode  of  preventing,  with  the  least  inconveni- 
ence, the  commission  of  injuries."  ^ 

The  pursuit  of  harmless  employments  in  a  man-  f^li^y 
ner  which  may  endanger  the  property  of  others  may  ^ed  in 
be  prohibited.  Thus  a  police  regulation  prohibiting  manner. 
washing  and  ironing  in  public  laundries  in  pre- 
scribed limits  within  a  city  during  certain  hours  of 
the  night  has  been  upheld  on  the  ground  of  the  dan- 
ger of  fire  were  the  laundry  business  allowed  under 
the  prohibited  conditions.^ 

The  tendencies  of  two  similar  employments  may  ^o'^ilf/nt™" 
afford  a  sufficient  ground  of  discrimination.  In  a  nitldTy 
case  wherein  a  specific  tax  laid  by  the  State  of  Geor- 
gia on  the  occupation  of  hiring  persons  to  labor  out- 
side the  State  was  resisted  on  the  ground  that  it  con- 
stituted an  invalid  discrimination  against  the  occu- 
pation involved,  because  no  tax  was  laid  on  hiring 
to  labor  within  the  State,  the  Federal  Supreme 
Court  sustained  the  tax.     The  Supreme  Court  of 

R.  Co.  V.  Pontius,  157  U.  S.  209;  Tullis  v.  Lake  Erie,  etc.,  R.  Co., 
175  U.  S.  348;  Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593. 

1  Missouri  Pac.  R.  Co.  v.  Humes,    115   U.   S.  512;   Minneapolis, 
etc.,  R.  Co.  V.  Beckwith,  129  U.  S.  26. 

2  Missouri  Pac.  R.  Co.  v.  Humes,   115  U.  S.  512. 

sBarbier  v.  Connolly,  113  U.  6,  27;  Soon  Hing  v.  Crowley,  113 
U.  S.  703. 


314  DUE  PROCESS  OF  LAW 

Chapter    QeoTgia  upheld  the  law  because,  first,  it  did  not  ap- 

pear  that  employing  laborers  for  work  in  the  State 

was  a  business  followed  by  any  one,  and,  second,  be- 
cause the  State  could  properly  discriminate  between 
occupations  of  a  similar  nature  but  a  dissunilar  tend- 
ency, between  those  which  tended  to  induce  the 
laboring  population  to  leave  the  State,  and  those 
which  tended  to  induce  that  population  to  remain. 
After  noticing  this  holding,  the  Supreme  Court  of 
the  United  States  said:  ''We  are  unable  to  say 
that  such  a  discrimination,  if  it  existed,  did  not  rest 
on  reasonable  grounds,  and  was  not  within  the  dis- 
cretion of  the  State  legislature. ' '  * 


BUSINESS  AFFECTED  WITH  A  PUBLIC  INTEREST. 

whos"e^nan.         Oue  large  field  of  legislative  activity  which  is 

agemer 
affects 
public. 


Business 
whose  m£ 

affects  the  placcd  uudcr  the  head  of  the  police  power  is  the 
regulation  of  business  or  property  affected  with  a 
public  interest.  The  doctrine  was  authoritatively 
declared  in  Munn  v.  Illinois,^  in  1876,  being  there  de- 
veloped from  principles  stated  in  the  treatise  De 
Portibus  Maris  by  Lord  Hale,  who  declared  that 
when  "wharves,  cranes  and  other  conveniences  are 
affected  with  a  public  interest,  they  cease  to  be  juris 
privati  only,"  and  ought  to  be  under  public  regula- 
tion ;  "  as  if  a  man  set  out  a  street  in  a  new  building 
on  his  own  land,  it  is  no  longer  bare  private  interest, 
but  is  affected  with  a  public  interest. ' '  ^  fThe  Fed- 
eral Supreme  Court  states  the  doctrine  thus :  ' '  Prop- 
erty does  become  clothed  with  a  public  interest  when 

4  Williams  v.  Fears,  179  U.  S.  270. 
594  U.  S.   113. 

6  Hale,  De  Portibus  Maris,  part  ii.  c.  6    (Hargrave's  Law  Tracts, 
p.  77)  ;  Bolt  V.  Stennett,  8  T.  E.  006;  Allnutt  v.  Inglis,  12  East  527. 


DUE  PROCESS  OF  LAW  315 


used  in  a  manner  to  make  it  of  public  consequence  chapter 
and  affect  the  community  at  large.  When,  therefore, 
one  devotes  his  property  to  a  use  in  which  the  public 
has  an  interest,  he,  in  effect,  grants  to  the  public  an 
interest  in  that  use  and  must  submit  to  be  controlled 
by  the  public  for  the  common  good,  to  the  extent  of 
the  interest  he  has  thus  created.  "^  The  same 
idea  has  been  stated  by  Mr.  Justice  iSradley  ^  as  fol- 
lows: '^When  an  employment  or  business  .  .  . 
becomes  a  practical  monopoly,  to  which  the  citizen 
is  compelled  to  resort,  and  by  means  of  which  a 
tribute  can  be  exacted  from  the  community,  it  is  sub- 
ject to  regulation  by  the  legislative  power."  The 
principle  of  virtual  monopoly  which  seems  to  give  a 
reasonable  foundation  for  the  doctrine  appears  to 
have  been  abandoned  by  the  United  States  Supreme 
Court  in  later  cases.^ 

The  most  familiar  instances  of  the  regulation  of  Jf^^^^f^^^^g, 
business  affected  with  a  public  interest  are  found  tfthpubuc 

interest. 

7Munn  V.  Illinois,  94  U.  S.  113,  126;  Budd  v.  New  York,  143 
U.  S.  517;  Brass  v.  Stoeser,  153  U.  S.  391;  Getting  v.  Kansas  City 
Stock  Yards  Co.,  183  U.  S.  79,  84. 

The  doctrine  of  Munn  v.  Illinois  has  been  sharply  criticised  on 
the  ground  that  the  doctrine  of  Lord  Chief  Justice  Hale  was  miscon- 
ceived; that  in  all  the  instances  cited  by  Lord  Hale,  the  public  or 
the  crown  had  an  actual  proprietary  interest  in  the  property  "  af- 
fected with  a  public  interest."  See  note  to  the  Munn  Case,  16  Am. 
Law  Reg.  N.  S.  539,  valuable  as  a  contemporary  analysis  of  the 
authorities  on  which  the  decision  is  founded;  State  V.  Associated 
Press,  159  Mo.  410;  Cooley,  Const.  Limit.,  6th  ed.,  734  et  seq.;  The 
Power  of  the  State  to  Regulate  Prices  and  Charges,  by  G.  A.  Fink- 
elnburg,  32  Am.  L.  Rev.  501. 

8  Dissenting  opinion  in  Sinking  Fund  Cases,  99  U.  S.  700,  747, 
quoted  in  the  opinion  of  the  court  in  Budd  v.  New  York,  143  U.  S. 
517,  537. 

9  See  Brass  v.  Stoeser,  153  U.  S.  391,  403,  and  dissenting  opinion 
of  Brewer,  Field,  Jackson,  and  White,  JJ.,  at  p.  409.  Compare, 
however,  32  Am.  Law  Rev.  511. 


316  DUE  PROCESS  OF  LAW 


Chapter    j^  the  regulation  of  common  carriers  and  railroads,^ 


innkeepers,    wharfingers,    ferrymen,    millers,    and 
warehousemen,^  but  the  principle  is  a  general  one. 

1  In  Gladson  v.  Minnesota,  166  U.  S.  427,  a  State  statute  requir- 
ing all  regular  passenger  trains,  operated  wholly  within  the  State, 
to  stop  at  all  county  seats  through  which  the  road  passed  and  where 
it  had  a  station,  was  held  to  be  valid.  The  court  said:  "  A  railroad 
corporation,  created  by  a  State,  is  for  all  purposes  of  local  govern- 
ment a  domestic  corporation,  and  its  railroad  within  the  State  is  a 
matter  of  domestic  concern.  ...  It  [the  State]  may  prescribe 
the  location  and  plan  of  construction  of  the  road,  the  rate  of  speed  at 
which  the  trains  shall  run,  and  the  places  at  which  they  shall  stop, 
and  may  make  any  other  reasonable  regulations  for  their  manage- 
ment, in  order  to  secure  the  objects  of  the  incorporation,  and  the 
safety,  good  order,  convenience,  and  comfort  of  the  passengers  and  of 
the  public.  All  such  regulations  are  strictly  within  the  police  power 
of  the  State." 

2  Grain  elevators:  Munn  v.  Illinois,  94  U.  S.  113,  131,  132;  Budd 
V.  New  York,  143  U.  S.  517,  536.  Grist-mills:  Burlington  v.  Beas- 
ley,  94  U.  S.  310;  State  v.  Edwards,  86  Me.  105,  25  L.  R.  A.  505. 
Bakers:  Mobile  v.  Yuille,  3  Ala.  137  (ordinance  regulating  weight, 
quality,  and  price  of  bread  sustained). 

Many  of  the  older  examples  enumerated  in  Munn's  Case  are 
foimded  ultimately  on  mediaeval  legislative  precedents  adopted  under 
conditions  and  economical  ideas  foreign  to  modern  times.  In  the 
Middle  Ages,  before  the  law  of  supply  and  demand  was  understood, 
it  was  assumed  that  there  was  for  every  commodity  a  just  natural 
price,  and  that  this  price  might  be  found  and  established  by  the 
state.  Freund,  Pol.  Power,  374,  citing,  inter  alia,  Cunningham, 
Growth  of  Eng.  Com.,  vol.  2,  p.  232.  Consequently,  the  English  gov- 
ernmental authorities,  national  and  local,  undertook  to  regulate  the 
prices,  not  only  of  labor,  but  of  a  variety  of  commodities.  In  the 
same  way,  elaborate  lists  of  prices  and  wages  were  established  by 
legislation  in  some  of  the  American  colonies.  Finkelnburg,  Poicer 
of  States  to  Regulate  Prices  and  Charges,  32  Am.  L.  Rev.  502,  503. 
In  short,  what  would  now  be  called  the  police  power  of  the  state 
had  an  indefinitely  wider  range  in  early  times,  and  its  application 
to  state  regulation  of  prices  and  wages  was  unhampered  by  notions 
of  equality  of  rights  or  due  process.  Again,  in  colonial  times,  when 
the  country  was  thinly  settled,  some  employments,  as  that  of  a 
miller,  may  have  partaken  to  an  extent  quite  impossible  at  this  day 
of  the  character  of  a  virtual  monopoly.  In  West  v.  Rawson,  40 
W.  Va.  480,  the  statute  regulating  the  business  and  charges  of 
milling  had  been  brought  forward  in  the  statute  books  from  the  year 


DUE  PROCESS  OF  LAW  317 

It  extends  to  the  business  of  grain  elevators ;  ^  com-    Chapter 

panies  supplying  water  and  gas ;  "*  stockyard  com-   ■ 

panies ;  ^  telegraph  and  telephone  companies ;  ®  and 
has  been  held  to  include  the  owners  of  places  of  pub- 
lic amusement,^  hackmen,^  and  the  business  of  fur- 
nishing market  quotations.^  Business  purely  pri- 
vate, not  affected  with  a  public  interest,  is  not  sub- 
ject to  public  regulation.  Under  this  class  have 
been  placed  the  dispensing  of  drinks  from  a  soda- 
water  fountain  *  and,  in  Missouri,  the  business  of  a 
news  agency  in  supplying  news  items.^ 

A  test  of  inclusion,  but  not  of  exclusion,  has  been 

1748,  and  it  was  enforced  without  any  question  as  to  its  constitu- 
tionality. 

3  Brass  V.  Stoeser,  153  U.  S.  391,  and  cases  cited  in  last  note. 

4  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347;  San 
Diego  Land  Co.  v.  National  City,  174  U.  S.  739 ;  Mobile  v.  Bienville 
Water  Supply  Co.,  130  Ala.  379;  Indiana  Natural,  etc.,  Gas  Co,  V. 
State,  158  Ind.  516;  Charleston  Natural  Gas  Co.  v.  Lowe,  52  W.  Va. 
662. 

5  Getting  V.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79. 

oNew  York  V.  Squire,  145  U.  S.  175,  affirming  107  N.  Y.  593; 
Central  Union  Telephone  Co.  v.  State,  118  Ind.  194,  10  Am.  St.  Rep. 
114;  Chesapeake,  etc..  Telephone  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  60 
Md.  399,  59  Am.  Rep.  167;  Godwin  v.  Carolina  Telephone,  etc.,  Co., 
136  N.  Car.  258 ;  Gardner  v.  Providence  Telephone  Co.,  23  R.  I.  262 ; 
Commercial  Union  Tel.  Co.  v.  New  England  Telephone,  etc.,  Co.,  61 
Vt.  241. 

7  Greenberg  V.  Western  Turf  Assoc,  140  Cal.  357 ;  Cecil  v.  Green, 
161  111.  265;  People  V.  King,  110  N.  Y.  418,  1  L.  R.  A.  293.  See 
also  Civil  Rights  Cases,  109  U.  S.  3,  per  Harlan,  J.,  dissenting,  at 
p.  42. 

s  Lindsay  v.  Anniston,  104  Ala.  261. 

9  New  York,  etc..  Grain,  etc.,  Exch.  V.  Board  of  Trade,  127  111. 
153. 

1  Cecil  V.  Green,   161  111.  265. 

2  State  V.  Associated  Press,  159  Mo.  410. 

A  different  conclusion  was  reached  in  Inter-Ocean  Pub.  Co.  V. 
Associated  Press,  184  111.  438,  and  the  business  of  the  Associated 
Press  was  held  to  be  "  affected  with  a  public  interest." 


318 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Work 
which  the 
State  might 
perform. 


found  in  the  tad  that  the  business  sought  to  be  regu- 
lated is  one  which  is  confessedly  of  a  public  charac- 
ter, that  is,  which  is  a  proper  work  for  the  State 
itself,  and  that  the  State  has  authorized  in  its  prose- 
cution the  employment  of  some  of  the  powers  of 
overeignty,  as  of  the  power  of  eminent  domain.^ 
This  is  not,  however,  a  test  of  exclusion,  because 
many  businesses  have  been  held  affected  with  a  pub- 
lic purpose,  which  may  properly  be  carried  on  by 
private  individuals,  and  which  are  conducted  with- 
out the  aid  of  the  State's  supreme  power.^ 


Restraints 
on  legisla- 
tive power 
to  regulate. 


KEGULATION  OP  KATES. 

From  the  principles  already  stated  it  follows  that 
the  rate  of  the  charges  of  all  business  affected  with 
a  public  interest  is  subject  to  regulation  by  the  legis- 
lature. When  the  question  was  first  presented  in 
1876  to  the  United  States  Supreme  Court  in  Munn 
V.  Illinois,^  and  the  so-called  Granger  Cases,^  the 
tight  of  the  State  legislature  to  regulate  rates  was 
dieclared  to  be  complete,  the  question  of  reasonable- 
ness was  pronounced  to  be  a  legislative  one,  and  it 
was  said  that  ' '  for  protection  against  abuses  by  leg- 
islatures the  people  must  resort  to  the  polls,  not  to 
the  courts.  "M  The  doctrine  thus  announced,  how- 

3  Cotting  V.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79 ;  Falls- 
burg  Power,  etc.,  Co.  V.  Alexander,  101  Va.  98,  109. 

4  Cotting  V.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79. 

5  94  U.  S.  113. 

6  Chicago,  etc.,  R.  Co.  v.  Iowa,  94  U.  S.  155;  Peik  v.  Chicago, 
etc.,  R.  Co.,  94  U.  S.  164;  Chicago,  etc.,  R.  Co.  v.  Ackley,  94  U.  S. 
179;  Winona,  etc.,  R.  Co.  v.  Blake,  94  U.  S.  180;  Stone  v.  Wisconsin, 
94  U.  S.  181.     For  the  name,  see  94  U.  S.  183. 

7  Munn  V.  Illinois,  94  U.  S.  113,  133,  134,  Sae  also  Peik  v. 
Chicago,  etc.,  R.  Co.,  94  U.  S.  164,  178. 


DUE  PROCESS  OF  LAW  319 

ever,  lias  undergone  progressive  modification  in  later    Chapter 

decisions.     In    the    Railroad    Commission    Cases,^  

which  came  before  the  court  in  1886,  the  court  in  a 
dictum  declared  there  were  limitations  on  the  State's 
authority.  [J 'This  power  to  regulate,"  it  was  said, 
' '  is  not  a  power  to  destroy,  and  limitation  is  not  the 
equivalent  of  confiscation.  Under  pretense  of  regu- 
lating fares  and  freights,  the  State  cannot  require  a 
railroad  corporation  to  carry  persons  or  property 
without  reward ;  neither  can  it  do  that  which  in  law 
amounts  to  a  taking  of  private  property  for  public 
use  without  just  compensation,  or  without  due  pro- 
cess of  law."  ^  The  prescribing  of  future  rates  is  a 
legislative  act,  while  the  inquiry  whether  existing 
rates  are  reasonable  is  a  judicial  act.^-  '''"''^'~" 

When  the  rates  were  established  not  by  the  legis-  fne|si'a°" 
lature  directly,  but  by  an  administrative  board  cre- 
ated by  the  legislature,  the  court  said :!"  The  ques- 
tion of  the  reasonableness  of  a  rate  of  charge  for 
transportation  by  a  railroad  company,  involving  as 
it  does  the  element  of  reasonableness  both  as  re- 
gards the  company  and  as  regards  the  public,  is 
eminently  a  question  for  judicial  investigation,  re- 
quiring due  process  of  law  for  its  determination.jj^ 
This  requires  in  such  cases  hearing  and  notice,  but 

8  116  U.  S.  307. 

9  116  U.  S.  331.  See  also  Dow  v.  Beidelman,  125  U.  S.  680,  688; 
Georgia  R.,  etc.,  Co.  v.  Smith,  128  U.  S.  179;  Louisville,  etc.,  R.  Co. 
V.  Kentucky,  183  U.  S.  503,  510. 

9*  Interstate  Commerce  Com.  v.  Cincinnati,  etc.,  R.  Co.,  167  U.  S. 
479,  499. 

1  Chicago,  etc.,  R.  Co.  v.  Minnesota,  134  U.  S.  418,  458;  Louis- 
ville, etc.,  R.  Co.  V.  Kentucky,  183  U.  S.  503,  510,  where  a  ruling  re- 
quiring the  same  rates  for  long  and  for  short  hauls  was  sus- 
tained. 


tive  power. 


320  DUE  PROCESS  OF  LAW 

Chapter    when  the  legislature  acts   directly  in  establishing 

'- —   rates  no  notice  and  hearing  is  necessary^ 

S'lfsw"^^  Even  when  the  legislature  acts  directly,  the  courts 
bie'rltes"^'  havc  powcr  to  set  aside  unreasonable  rates.  ['^.The 
legislature,"  the  Federal  Supreme  Court  has  said, 
"has  power  to  fix  rates,  and  the  extent  of  judicial 
interference  is  protection  against  unreasonable 
rates.  "^  In  a  case  involving  the  validity  of  water 
rates'^fixed  by  local  authorities,  the  same  principles 
were  laid  down,  and  the  court  added:  *' Judicial  in- 
terference should  never  occur  unless  the  case  pre- 
sents, clearly  and  beyond  all  doubt,  such  a  flagrant 
attack  on  the  rights  of  property  under  the  guise  of 
regulation  as  to  compel  the  court  to  say  that  the 
rates  prescribed  will  necessarily  have  the  effect  to 
deny  just  compensation  for  private  property  taken 
for  public  use. "  ■*  In  Smyth  v.  Ames,^  decided  in 
1898,  the  court,  after  a  full  examination  of  authori- 
ties, sums  up  its  conclusion  on  this  point  as  follows : 
''While  rates  for  the  transportation  of  persons  and 
property  within  the  limits  of  a  State  are  primarily 
for  its  determination,  the  question  whether  they  are 
so  unreasonably  low  as  to  deprive  the  carrier  of  its 
property  without  such  compensation  as  the  consti- 
tution secures,  and,  therefore,  without  due  process 

2  Budd  V.  New  York,  143  U.  S.  517,  affirming  117  N.  Y.  1. 

3  Chicago,  etc.,  R.  Co.  v.  Wellman,  143  U.  S.  339;  Reagan  V. 
Farmers'  L.  &  T.  Co.,  154  U.  S.  362;  St.  Louis,  etc.,  R.  Co.  v.  Gill.  ■ 
156  U.  S.  649,  657;  Covington,  etc..  Turnpike  Road  Co.  v.  Sandford, 
164  U.  S.  578,  592;  Interstate  Commerce  Commission  v.  Cincinnati, 
etc.,  R.  Co.,  167  U.  S.  479,  499;  Lake  Shore,  etc.,  R.  Co.  v.  Smith, 
173  U.  S.  687. 

*  San  Diego  Land  Co.  v.  National  City,  174  U.  S.  739,  754.  See 
also  Stanislaus  County  v.  San  Joaquin,  etc..  Canal,  etc.,  Co..  192 
U.  S.  201. 

5  169  U.  S.  466. 


DUE  PKOCESS  OF  LAW  321 


of  law,  cannot  be  so  conclusively  determined  by  tlie  Chapter 

legislature  of  the  State,  or  by  regulations  adopted  • 

under  its  authority,  that  the  matter  may  not  become 
the  subject  of  judicial  inquiry." 

The  question  of  the  reasonableness  of  the  rate  Ji|^^e°sst" 

is  an  equitable  question  depending  on  a  considera-  fn^'hrques- 

tion. 

tion  of  all  the  circumstances  of  the  particular  case, 
and  requiring  the  weighing  of  the  various  interests 
involved ;  on  the  one  hand,  the  interests  of  the  own- 
ers of  the  property,  including  those  who  have  ac- 
quired rights  therein  as  bondholders ;  on  the  other, 
the  interests  of  the  public.  What  the  property  own- 
ers are  entitled  to  ask  is  a  fair  return  upon  the  value 
of  that  which  is  employed  for  the  public  conveni- 
ence; what  the  public  is  entitled  to  demand  is  that 
no  more  be  exacted  from  it  than  the  services  ren- 
dered are  reasonably  worth.^ 

In  a  case  involving  the  validity  of  rates  prescribed 
for  a  turnpike  company,  the  court  said :  ' '  Each  case 
must  depend  upon  its  special  facts;  and  when  a 
court,  without  assuming  itself  to  prescribe  rates,  is 
required  to  determine  whether  the  rates  prescribed 
by  the  legislature  for  a  corporation  controlling  a 
public  highway  are,  as  an  entirety,  so  unjust  as  to 
destroy  the  value  of  its  property  for  all  the  purposes 
for  which  it  was  acquired,  its  duty  is  to  take  into 
consideration  the  interests  both  of  the  public  and  of 
the  owner  of  the  property,  together  with  all  other 
circumstances  that  are  fairly  to  be  considered  in 
determining  whether  the  legislature  has,  under  the 
guise  of  regulating  rates,  exceeded  its  constitutional 
authority,   and  practically  deprived  the  owner  of 

6  Smyth  V.  Ames,  169  U.  S.  466,  547. 
21 


322 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Efifect  of 
rate  on  en- 
tire line, 
not  on 
parts,  con- 
sidered. 


Mortgage 
bondhola- 


Value  of 
property 
the  basis  of 
calculation. 


property  without  due  process  of  law."'^  It  was 
held  in  this  case  that  an  allegation  in  an  answer  to  a 
bill  for  an  injunction,  that  under  the  rates  estab- 
lished the  income  of  the  company  would  be  so  re- 
duced that  it  could  not  maintain  its  road,  meet  its 
ordinary  expenses,  and  earn  any  dividends  for  stock- 
holders, made,  in  connection  with  facts  stated,  a 
prima  facie  case  of  their  invalidity.^ 

When  a  railroad  company  has  been  formed  by  the 
consolidation  of  several  pre-existing  separate  lines, 
the  reasonableness  of  the  rate  established  for  the 
consolidated  company  is  to  be  tested  by  the  effect 
of  the  rate  on  the  entire  line  of  railway  as  consoli- 
dated and  not  by  its  effect  on  the  road  belonging  to 
one  of  the  pre-existing  companies  only.  ' '  The  com- 
pany cannot  claim  the  right  to  earn  a  net  profit  from 
every  mile,  section,  or  other  part  into  which  the  road 
might  be  divided,  nor  attack  as  unjust  a  regulation 
which  fixed  a  rate  at  which  some  such  part  would 
be  unremunerative."  ^ 

The  interest  of  mortgage  bondholders  is  an  ele- 
ment to  be  considered,  and  if,  under  the  schedule  of 
rates  fixed,  interest  on  the  mortgage  debt  cannot  be 
paid,  the  enforcement  of  the  schedule  ordinarily 
means  confiscation.^ 

The  basis  of  any  calculation  of  reasonable  rates  is 
held  to  be  the  present  value  of  the  property  em- 


f  Covington,  etc.,  Turnpike  Road  Co.  v.  Sandford,  164  U.  S.  578, 
597.     See  also  Ames  V.  Union  Pac.  R.  Co.,  64  Fed.  Rep.  165,  178. 

8  See  also  Smyth  v.  Ames,  169  U.  S.  466,  when  proof  of  facts 
showing  rates  so  low  that  ordinary  expenses  could  not  be  met  was 
held  to  avoid  the  rates. 

»  St.  Louis,  etc.,  R.  Co.  v.  Gill,  15G  U.  S.  649,  657. 

1  Chicago,  etc.,  R.  Co.  v.  Dey,  35  Fed.  Rep.  866,  870,  880. 


value. 


DUE  PROCESS  OF  LAW  323 

ployed  in  the  public  service,  and  any  rate  which    Chapter 

fails  to  give  ''a  fair  return"  on  this  value  deprives  

the  owner  of  property  without  compensation. ^  But 
it  has  been  said  that  there  may  be  cases  where 
the  original  cost  of  construction  evidenced  by  out- 
standing bonds,  rather  than  the  real  value  of  the 
property,  should  be  taken  into  account,  so  as  not  to 
cast  the  entire  burden  of  depreciation  on  those  who 
have  invested  their  money  in  railroads.^ 

In  order  to  ascertain  the  value  of  the  property  SbTc"?- 
emplo3^ed  in  the  public  service,  "the  original  cost  of  estfmatil!^ 
construction,  the  amount  expended  in  permanent  im- 
provements, the  amount  and  market  value  of  its 
bonds  and  stock,  the  present  as  compared  with  the 
original  cost  of  construction,  the  probable  earning 
capacity  of  the  property  under  particular  rates  pre- 
scribed by  statute,  and  the  sum  required  to  meet  op- 
erating expenses,  are  all  matters  for  consideration, 

2  Smyth  V.  Ames,  169  U.  S.  466 ;  San  Diego  Land  Co.  v.  National 
City,  174  U.  S.  739;  Cotting  v.  Kansas  City  Stock  Yards  Co.,  183 
U.  S.,  79,  91;  San  Diego  Land,  etc.,  Co.  V.  Jasper,  189  U.  S.,  439, 
442,  where  it  was  held,  however,  that  when  a  water  supply  plant  has 
been  built  for  a  large  area,  and  the  rates  fixed  with  reference  to  its 
capacity,  the  company  cannot  complain  that  the  rates  do  not  give 
a  reasonable  return,  if  it  has  not  as  yet  the  customers  contem- 
plated. 

Judge  Noyes,  approaching  the  question  of  rates  at  once  as  a  rail- 
road president  and  a  lawyer,  concludes  that  "  charging  according  to 
the  value  of  the  service  is  the  only  feasible  method  of  making  rates." 
American  Railroad  Rates,  236.  Value  of  service  (to  the  shipper) 
is  opposed  to  cost  of  service.  Reasonableness  is  always  a  matter  of 
comparison,  and  "  when  rates  do  not  exceed  the  charges  made  by 
other  railroads  similarly  situated  they  are  prima  fade  reasonable." 
7&.  63.  There  is  no  such  thing  as  a  rate  reasonable  per  se  (ib.  61), 
and  "  rates,  like  taxes,  are  based  upon  ability  to  pay."  76.  53.  See 
also  infra,  p.  327,  and  note  4. 

3  Ames  V.  Union  Pac.  R.  Co.,  64  Fed.  Rep.  165,  177,  178,  per 
Brewer,  Cir.  Justice. 


324 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Considera- 
tion accord- 
ed to  differ- 
ent ele- 
ments 
varies. 


"  Fair  re- 
turn." 


and  are  to  be  given  such  weight  as  may  be  just  and 
right  in  each  case."  This  enumeration  of  the  ele- 
ments of  value  is  not  exclusive,  and  "there  may  be 
other  matters  to  be  regarded."  ^ 

The  consideration  to  be  accorded  these  elements 
may  vary.  The  interest  of  the  public  as  well  as  the 
property  owners  being  a  consideration,  the  public 
is  not  to  be  burdened  with  increased  rates  necessary 
to  meet  a  bond  issue  in  excess  of  fair  value,  or  a 
fictitious  capitalization,^  or  reckless  operating  ex- 
penses. ' '  There  may  be  circumstances, ' '  it  has  been 
said,  "that  would  justify  such  a  tariff  [as  fails  to 
produce  any  profit] ;  there  may  have  been  extrava- 
gance and  a  needless  expenditure  of  money;  there 
may  be  waste  in  the  management  of  the  road ;  enor- 
mous salaries,  unjust  discrimination  as  between  indi- 
vidual shippers,  resulting  in  general  loss.  The  con- 
struction may  have  been  at  a  time  when  material  and 
labor  were  at  the  highest  price,  so  that  the  actual  cost 
far  exceeds  the  present  value;  the  road  may  have 
been  unwisely  built,  in  localities  where  there  is  not 
sufficient  business  to  sustain  a  road.  Doubtless,  too, 
there  are  many  other  matters  affecting  the  rights 
of  the  community  in  which  the  road  is  built,  as  well 
as  the  rights  of  those  who  have  built  the  road."^ 
A  "fair  return"  on  the  value  of  property  invested 
cannot,  therefore,  be  set  at  a  certain  per  cent  on  the 
capital."^ 


4  Smyth  v.  Ames,  169  U.  S.  466.     See  also  San  Diego  Land  Co.  v. 
National  City,  174  U.  S.  739,  757. 

5  Smyth  r.  Ames,  169  U.  S.  466,  544 ;  San  Diego  Land  Co.  V.  Na- 
tional City,  174  U.  S.  739,  757,  758. 

6  Reagan  v.  Farmer's  L.  &  T.,  etc.,  Co.,  154  U.  S.  362,  412. 

»  Covington,  etc.,  Turnpike  Road  Co.  v.  Sandford,  1G4  U.  S.  578, 


DUE  PROCESS  OF  LAW  325 


On  the  other  hand,  the  rule  once  laid  down  that    chapter 

''when  the  proposed  rates  will  give  some  compensa- 

tion,  however  small,  to  the  owners  of  the  railroad 
property,  the  courts  have  no  power  to  interfere,"^ 
has  yielded  with  the  advance  of  opinion  that  reason- 
ableness is  an  equitable  question  in  all  the  circum- 
stances of  the  case.^ 

In  Cottina  v.  Kansas  Citii  Stock  Yards  Co.,^  Mr.  ra^tSTs^de^ 

^  ^  pending  on 

Justice  Brewer,  writing  the  opinion  of  the  court,  i^^^^^l 
but  speaking  on  this  point  only  for  himself  and  two 
other  judges,  suggested  a  distinction  in  the  consid 
erations  which  make  a  rate  reasonable  according  as 
the  property  owner  is  intentionally  acting  in  the 
performance  of  State  functions  and  with  the  aid 
of  State  franchises,  such  as  eminent  domain,  or  as 
without  any  intent  to  perform  a  public  service  he 
has  placed  his  property  in  such  a  position  that  the 
public  has  an  interest  in  its  use. 

In  the  first  case,  the  property  owner  distinctly  un-  J^Jf^^,  jg 
dertakes  to  do  the  work  of  the  State,  and  it  may  be  Ime^'mW 

perform. 

said  that  by  his  action  he  voluntarily  accepts  all  the 
conditions  of  public  service  which  would  attach  were 

597,  598;  San  Diego  Land  Co.  v.  National  City,  174  U.  S.  739,  756; 
Chicago,  etc.,  R.  Co.  v.  Dey,  35  Fed.  Rep.  866,  878. 

8  Chicago,  etc.,  R.  Co.  v.  Dey,  35  Fed.  Rep.  866,  879,  per  Brewer, 
J.  See  Dow  V.  Beidelman,  125  U.  S.  680,  where  rates  giving  a  re- 
turn of  one  and  a  half  per  cent  on  the  original  cost  of  the  road  and 
only  a  little  more  than  two  per  cent  on  the  amount  of  the  bonded 
debt  were  sustained. 

In  Cotting  v.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79,  91,  it 
is  said:  "It  [the  court]  has  not  held  affirmatively  that  the  legis- 
lature may  enforce  rates  which  stop  only  this  side  of  confiscation 
and  leave  the  property  in  the  hands  and  under  the  care  of  the 
owners  without  any  remuneration  for  its  use." 

9  Southern  Pac.  R.  Co.  V.  Board  of  Railroad  Com'rs,  78  Fed.  Rep. 
261,  per  McKenna,  J. 

1  183  U.  S.  79. 


326 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Where 
business  is 
in  the  na- 
ture of  a 
private  en- 
terprise. 


the  State  itself  performing  the  service.  ''He  ex- 
presses his  willingness  to  do  the  work  of  the  State, 
aware  that  the  State  in  the  discharge  of  its  public 
duties  is  not  guided  solely  by  a  question  of  profit. 
It  may  rightfully  determine  that  the  particular  serv- 
ice is  of  such  importance  to  the  public  that  it  may 
be  conducted  at  a  pecuniary  loss,  having  in  view 
a  larger  general  interest.  At  any  rate,  it  does  not 
perform  its  services  with  the  single  idea  of  profit. 
Its  thought  is  the  general  public  welfare.  If,  in 
such  a  case,  an  individual  is  willing  to  undertake  the 
work  of  the  State,  may  it  not  be  urged  that  he  in  a 
measure  subjects  himself  to  the  same  rules  of  action, 
and  that  if  the  body  which  expresses  the  judgment  of 
the  State  believes  that  the  particular  service  should 
be  rendered  without  profit,  he  is  not  at  liberty  to 
complain  ? "  ^ 

In  the  several  cases  where  a  private  business  be- 
comes subject  to  government  control,  solely  because 
it  is  held  to  be  affected  with  a  public  interest,  the 
position  of  the  owner  is  different.  He  is  not  per- 
forming the  work  of  the  State,  nor  can  he  avail  him- 
self of  the  power  of  the  State.  ''His  business  in  all 
matters  of  purchase  and  sale  is  subject  to  the  ordi- 
nary conditions  of  the  market  and  the  freedom  of 
contract.  He  can  force  no  one  to  sell  to  him;  he 
cannot  prescribe  the  price  he  shall  pay.  He  must 
deal  in  the  market  as  others  deal,  buying  only  when 
he  can  buy  and  at  the  price  at  which  the  owner  is 
willing  to  sell;  and  selling  only  when  he  can  find  a 
purchaser  and  at  the  price  which  the  latter  is  will- 
ing to  pay.    If,  under  such  circumstances,  he  is  bound 


2  183  U.  S.  93. 


DUE  PROCESS  UF  LAW  327 

by  all  the  conditions  of  ordinary  mercantile  transac-    chgter 

tions,  lie  may  justly  claim  some  of  the  privileges  

which  attach  to  those  engaged  in  such  transac- 
tions." ^  In  this  case,  his  rates  are  not  to  be  meas- 
ured by  the  aggregate  amount  of  his  profits,  deter- 
mined by  the  volume  of  the  business,  but  by  the  ques- 
tion whether  any  particular  charge  to  an  individual 
dealing  with  him  is,  considering  the  services  ren- 
dered, an  unreasonable  exaction.  ''He  has  a  right 
to  do  business.  He  has  a  right  to  charge  for  each 
separate  service  that  which  is  a  reasonable  compen- 
sation therefor,  and  the  legislature  may  not  deny 
him  such  reasonable  compensation ;  and  may  not  in- 
terfere simply  because  out  of  the  multitude  of  his 
transactions,  the  amount  of  his  profits  is  large."* 
In  determining  what  charge  is  reasonable  by  the 
intrinsic  value  of  the  services  rendered,  the  custom- 
ary charge  for  similar  services,  as  determined  by 
ordinary  natural  conditions,  is  obviously  of  great 
importance.® 

A  statute  which,  purporting  to  regulate  rates,  in  ^jSSa- 
effect  gives  to  a  class  arbitrarily  selected,  as,  for  ^^°^' 
instance,  purchasers   of  one-thousand-mile   tickets, 
rights  denied  to  the  public  generally,  is  a  taking  of 
property  without  due  process  of  law.^ 

3  183  U.  S.  94,  95. 

4  Cotting  r.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  95.  See  also 
Parkersburg,   etc.,  Transp.  Co.  v.  Parkersburg,    107   U.   S.  691,   699. 

"  The  principle  must  be,  when  reasonableness  comes  in  question, 
not  what  profit  it  may  be  reasonable  for  a  company  to  make,  but 
what  it  is  reasonable  to  charge  to  the  person  who  is  charged." 
Canada  Southern  R.  Co.  v.  International  Bridge  Co.,  8  App.  Cas. 
723,  731,  per  Earl  of  Selborne,  L.  C. 

5  183  U.  S.  97,  98. 

6  Lake  Shore,  etc.,  R.  Co.  v.  Smith,  173  U.  S.  684. 


328 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


State  may 
legislate 
freely 
where  no 
vested  _ 
rights  in- 
volved. 


Reducing 
interest  on 
judgments. 


DEPRIVATIOISr    OP    PROPERTY. 

Private  Rights  Must  Be  Involved. 

In  arguing  that  a  person  has  been  deprived  of  life, 
liberty,  or  property  without  due  process  of  law  by 
the  exercise  on  the  part  of  the  State  of  its  police 
power  or  its  general  legislative  power,  it  must  nec- 
essarily be  shown  first  that  the  State's  action  inter- 
fered with  some  individual  private  right.  Thus, 
when  the  complaint  is  that  the  legislature  has  de- 
prived a  person  of  a  right  of  property,  the  argu- 
ment must  fail  if  it  is  shown  that  no  property 
right  is  involved  in  the  case.'^  A  statute  of  Cali- 
fornia provided  for  the  salaries  of  the  police  officers 
of  San  Francisco,  and  created  a  fund  for  pension- 
ing policemen  by  providing  that  the  city  should  re- 
tain two  dollars  a  month  out  of  each  officer's  salary, 
as  fixed  in  accordance  with  the  provisions  of  the 
law.  Several  years  later  the  act  was  repealed.  It 
was  held  that  a  policeman  who  had  "contributed" 
to  the  fund  had  no  vested  rights  therein  and  that 
the  repealing  act  was  not  a  taking  of  property  with- 
out due  process.  Looking  behind  the  terms  of  the 
statute  to  its  substance,  it  was  apparent  that  the 
two  dollars  set  apart  each  month  for  each  officer  was 
not  a  part  of  his  pay,  since  it  was  never  in  his  con- 
trol, but  merely  an  amount  contributed  by  the  State 
to  create  the  fund.^ 

When  the  State  exercises  its  legislative  powers 
by  enacting  a  reduced  rate  of  interest  on  judgments. 


7  New  Orleans  v.  New  Orleans  Water  Works  Co.,  142  U.  S.  79,  88. 

8  Pennie  v.  Reis,  132  U.  S.  464. 


DUE  PROCESS  OF  LAW  329 


no  right  of  a  judgment  creditor  is  infringed  by  the    Chapter 

prospective  application  of  the  statute  to  a  judgment  

previously  recovered,  because  the  judgment  creditor 
never  had  a  vested  right  of  property  in  interest  not 
yet  accrued,  and  the  question  how  much  interest 
shall  be  allowed  is  entirely  within  the  discretion  of 
the  legislature.^ 

When  legislative  regulations  are  concerned  with  sute'prop^ 
the  preservation  of  property  title  to  which  is  in  the 
people  of  a  State  as  a  whole,  there  is  no  depriva- 
tion of  property  without  due  process  of  law.  The 
right  of  a  municipality  acting  under  authority  from 
the  State  to  forbid  public  speaking  where  it  had 
previously  been  allowed  in  a  public  park  within  the 
municipality  has  been  upheld  on  this  ground.  ''For 
the  legislature  absolutely  or  conditionally  to  forbid 
public  speaking  in  a  highway  or  public  park  is  no 
more  an  infringement  of  the  rights  of  a  member  of 
the  public  than  for  the  owner  of  a  private  house 
to  forbid  it  in  his  house.    When  no  proprietary 

9  Morley  v.  Lake  Shore,  etc.,  R.  Co.,  146  U.  S.  162. 

The  court  in  this  case  after  remarking  that  "  if  the  plaintiff  has 
actually  received  on  account  of  his  judgment  all  that  he  is  entitled  to 
receive,  he  can  not  be  said  to  have  been  deprived  of  his  property," 
proceeds  to  observe  that  "  the  adjudication  of  the  plaintiff's  claims  by 
the  courts  of  his  own  State  must  be  admitted  to  be  due  process  of 
law."  The  last  remark  would  seem  to  be  too  sweeping  and  liable  to 
misconstruction.  Due  process  does  indeed  exist,  because  in  such  a 
case  the  legislative  action  in  the  bona  fide  exercise  of  its  discretion  is 
due  process;  but  a  State  court's  adjudication  on  the  constitution- 
ality of  a  State  statute  is  not  due  process,  and  if  it  were  no  case 
could  ever  reach  the  Federal  Supreme  Court  under  the  due  process 
clause  of  the  Fourteenth  Amendment.  The  question  really  involved, 
namely,  whether  there  is  a  vested  right  in  future  interest  at  the 
legal  rate  on  a  judgment,  has  been  decided  differently  in  some  State 
courts.     See  the  dissenting  opinion  of  Judge  Harlan  in  the  case  cited. 


330 


DUE  PKOCESS  OF  LAW 


Chapter    right  interferes  the  legislature  may  end  the  right 


Game. 


Reclaimed 

animals; 
dogs. 


Natural 
gas ;  petro- 
leum. 


of  the  public  to  enter  upon  the  public  place  by  put- 
ting an  end  to  the  dedication  to  public  uses.  So  it 
may  take  the  lesser  step  of  limiting  the  public  use  to 
certain  purposes."  ^ 

The  title  to  game,  animals  ferae  naturae,  is  in  the 
State  until  reduced  to  possession  by  an  individual,^ 
and  due  process  of  law  is  not  denied  by  statutes  reg- 
ulating the  times  and  conditions  of  taking  game.^ 

Animals  ferae  naturae  may,  by  being  reclaimed 
from  their  wild  state,  become  the  subject  of  a  quali- 
fied property,  which  subsists  so  long  as  its  subject 
is  within  the  control  of  its  possessor.  Assimilated 
to  animals  of  this  class  are  dogs,  which  "stand,  as 
it  were,  between  animals  ferae  naturae,  in  which, 
until  killed  or  subdued,  there  is  no  property,  and 
domestic  animals,  in  which  the  right  of  property  is 
perfect  and  complete."  The  right  of  property  in 
dogs  is  enjoyed  subject  to  such  regulation  as  the 
State  may  see  fit  to  impose,  and  a  law  giving  the 
right  of  recovery  for  their  destruction  only  when 
the  owner  has  complied  with  the  dog  taxing  or 
licensing  statutes  does  not  deprive  the  owner  of 
property  without  due  process  of  law.^ 

In  some  States,  deposits  of  natural  gas  and  petro- 
leum are  by  the  State  law,  which  in  this  matter  is 
controlling,^  treated  as  analogous  to  animals  ferae 

1  Com.  V.  Davis,  162  Mass.  510,  quoted  in  Davis  v.  Massachusetts, 
167  U.  S.  43,  where  the  Massachusetts  case  was  aifirmed. 

2Geer  v.  Connecticut,  161  U.  S.  519. 

sLawton  v.  Steele^  152  U.  S.  133;  Daniels  v.  Homer,  139  N.  Car, 
219. 

4  Sentell  v.  New  Orleans,  etc.,  R.  Co.,  166  U.  S.  705. 

6  The  right  of  the  surface  owner  to  reduce  to  possession  natural 
gas  and  oil  is  an  incident  of  his  ownership  of  the  land,  and  regula- 


DUE  PROCESS  OF  LAW  331 


naturae,  that  is,  title  is  in  tlie  State  until  they  are  ^''^l*^"" 
reduced  to  possession,  when  they  become  private 
property.  Consequently,  in  such  a  State,  a  statute 
requiring  the  owners  of  the  soil  to  stop  up  gas  and 
oil  wells  thereon  when  they  are  abandoned  and  mak- 
ing it  unlawful  for  any  one  to  allow  the  escape  of 
natural  gas  or  oil  into  the  open  air  was  held  to  be  a 
regulation  by  the  State  of  its  own  property  in  the 
interest  of  all  the  people  and  not  a  taking  of  private 
property.^  In  giving  its  decision,  the  court  said: 
*'As  to  gas  and  oil  the  surface  proprietors  within 
the  gas  field  all  have  the  right  to  reduce  to  posses- 
sion the  gas  and  oil  beneath.  They  could  not  be  ab- 
solutely deprived  of  this  right  which  belongs  to 
them  without  a  taking  of  private  property.  But 
there  is  a  coequal  right  in  them  all  to  take  from  a 
common  source  of  supply  the  two  substances  which 
in  the  nature  of  things  are  united,  though  separate. 
It  follows  from  the  essence  of  their  right  and  from 
the  situation  of  the  things  as  to  which  it  can  be  ex- 
erted, that  the  use  by  one  of  his  power  to  seek  to 
convert  a  part  of  the  common  fund  to  actual  posses- 
sion may  result  in  an  undue  proportion  being  attrib- 
uted to  one  of  the  possessors  of  the  right  to  the 
detriment  of  the  others,  or  by  waste  by  one  or  more 
to  the  annihilation  of  the  rights  of  the  remainder. 
Hence  it  is  that  the  legislative  power,  from  the  pecu- 
liar nature  of  the  right  and  the  objects  upon  which 
it  is  to  be  exerted,  can  be  manifested  for  the  pur- 
pose  of   protecting   all   the    collective    owners,   by 

tion  of  this  right  is  but  a  regulation  of  real  property  governed  by 
the  lex  rei  sitae.     Ohio  Oil  Co.  r.  Indiana.  177  U.  S.  190. 
6  Ohio  Oil  Co.  V.  Indiana,  177  U.  S.  190. 


332 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Corpora- 
tions; re- 
serving 
power  to 
repeal 
charter. 


Foreign 
corpora- 
tions. 


Property 
of  school 
districts. 


securing  a  just  distribution,  to  arise  from  the  en- 
joyment, by  them,  of  their  privilege  to  reduce  to 
possession,  and  to  reach  the  like  end  by  preventing 
waste." 

The  reserved  power  of  repeal  of  the  charter  of  a 
water  company  may  prevent  the  question  of  the  de- 
privation of  property  without  due  process  of  law 
arising  on  an  act  empowering  the  municipality  to 
erect  its  own  water  works."^  And  the  expiration  of 
the  contract  of  a  water  works  company  with  a  vil- 
lage to  supply  it  with  water  leaves  the  village  free 
to  construct  its  own  water  works,  and  its  consent  to 
the  incorporation  of  the  company  under  a  franchise 
not  exclusive  will  not  work  an  estoppel  or  render  its 
act  a  deprivation  of  property  without  due  process 
of  law.^ 

Restraints  oit  the  right  to  contract  placed  on  for- 
eign corporations  by  the  laws  under  which  they  ac- 
cept the  State's  permission  to  do  business  therein  are 
valid  because,  such  corporations  having  no  right  to 
contract  except  as  given  to  them  by  the  State,  no 
right  of  theirs  can  be  said  to  be  denied  or  infringed.^ 

The  subdivision  of  a  State  into  subordinate  terri- 
torial units  for  the  various  purposes  of  govermnent 
is  at  all  times  a  matter  entirely  in  the  discretion  of 
the  State,  and  such  subdivisions  acquire  as  against 
the  State  no  private  rights  in  property  vested  in 
them  for  public  purposes.     Consequently  a  law  cre- 


'  Newburyport  Water  Co.  v.  Newburyport,  193  U.  S.  577. 

8  Skaneateles  Waterworks  Co.  V.  Skaneateles,  184  U.  S.  354. 

0  Waters-Pierce  Oil  Co.  V.  Texas,  177  U.  S.  28;  John  Hancock 
Mut.  L.  Ins  Co.  V.  Warren,  181  U.  S.  73;  Fidelity  Miit.  L.  Ins.  As- 
soc. V.  Mettler,  185  U.  S.  308.  As  to  the  protection  extended  to  for- 
eign corporations  generally,  supra,  p.  100. 


DUE  PROCESS  OF  LAW  333 

ating  a  new  school  district  and  giving  to  it  tke  prop-    Ch^^^tcr 

erty  within  its   limits  which  had  belonged  to   the  ■ 

districts  from  which  it  was  created  is  not  a  taking 
of  property  without  due  process  of  law.^ 

It  would  seem  clear  that  no  individual  could  have  Sfs  aVd 
a  right  of  property  in  the  future  use  for  private 
purposes  of  the  national  flag  or  of  State  seals  or 
emblems,  and  that  the  use  of  these  things  was,  there- 
fore, in  the  absolute  control  of  the  legislature, 
whose  enactments  on  the  subject,  however  unwise, 
could  not  be  declared  void  by  the  courts.  This  view 
is  supported  by  recent  decisions  in  some  states,^ 
while  a  contrary  view  has  been  entertained  by  the 
courts  of  Illinois,  and  a  statute  forbidding  the  use 
of  the  national  flag  for  advertising  purposes  held 
to  be  void  as  an  unwarranted  interference  with  indi- 
vidual liberty.^  The  New  York  court  has  held  such 
a  law  invalid  in  so  far  as  it  operated  retrospectively 
upon  articles  already  made,  being  as  to  them  a  de- 
privation of  property  without  due  process  of  law.'* 

Professions  and  Offices  as  Property. 

The  selection  to  a  public  office  confers  on  the  indi-  2.*^„<o%^i°S- 
vidual  selected  no  right  of  property  in  the  office,-^  °nE!"^ 
nor  is  his  right  thereto  a  right  arising  from  any 
contract  between  himself  and  the  sovereign.^     ' '  The 

lAtty.-Gen.  v.  Lowrey,  199  U.  S.  233. 

2  Com.  V.  R.  I.  Sherman  Mfg.  Co.,  (Mass.  1905)  75  N.  E.  Rep.  71; 
Halter  v.  State,  (Neb.  1905)   105  S.  W.  Rep.  298. 
3Ruhstrat  V.  People,  185  111.  133. 

4  People  V.  Van  De  Carr,  178  N.  Y.  425. 

5  Taylor  v.  Beckham,  178  U.  S.  548;  Atty.-Gen.  V.  Jochim,  9& 
Mich.  358,  41  Am.  St.  Rep.  606;  Mial  r.  Ellington,  134  X.  Car.  131. 

6  Dartmouth  College  v.  Woodward,  4  Wheat.  (U.  S.)  518;  Butler  V. 
Pennsylvania,  10  How.  (U.  S.)  402,  416;  Newton  V.  Mahoning 
County,  100  U.  S.  548;  Crenshaw  v.  U.  S.,  134  U.  S.  99. 


334  DUE  PROCESS  OF  LAW 

Chapter    decisions  are  numerous,"  said  the  Supreme  Court, 

IX 

'Ho  the  effect  that  public  offices  are  mere  agencies 

or  trusts,  and  not  property  as  such.  Nor  are  the 
salary  and  emoluments  property,  secured  by  con- 
tract, but  compensation  for  services  actually  ren- 
dered. Nor  does  the  fact  that  the  constitution  [of 
the  State]  may  forbid  the  legislature  from  abol- 
ishing a  public  office  or  diminishing  the  salary 
thereof  during  the  term  of  the  incumbent  change 
its  character  or  make  it  property."''^  In  an  earlier 
case,  the  same  court  had  said:  ''The  selection  of 
officers  who  are  nothing  more  than  agents  for  the 
effectuating  of  such  public  purposes  is  a  matter  of 
public  convenience  or  necessity,  and  so,  too,  are  the 
periods  for  the  appointment  of  such  agents;  but 
neither  the  one  nor  the  other  of  these  arrange- 
ments can  constitute  any  obligation  to  continue 
such  agents,  or  to  re-appoint  them,  after  the  meas- 
ures which  brought  them  into  being  shall  have 
been  found  useless,  shall  have  been  fulfilled,  or  shall 
have  been  abrogated  as  even  detrimental  to  the 
well-being  of  the  public.  The  promised  compensa- 
tion for  services  actually  performed  and  accepted 
during  the  continuance  of  the  particular  agency, 
may  undoubtedly  be  claimed  both  upon  principles  of 
compact  and  of  equity;  but  to  insist  beyond  this  on 
the  perpetuation  of  a  public  policy  either  useless 
or  detrimental,  and  upon  a  reward  for  acts  neither 
desired  nor  performed,  would  appear  to  be  recon- 
cilable with  neither  common  justice  nor  common 


sense 


"  8 


t  Taylor  v.  Beckham,  178  U.  S.  548,  577. 

8  Butler  V.  Pennsylvania,   10  How.    (U.  S.)   402. 


ession 
or  calling. 


DUE  PROCESS  OF  LAW  335 


Proceeding  upon  such  reasoning,  a  contest  about    Chapter 

the  right  to  public  office  has  been  held  to  involve  no  

federal  question  within  the  due  process  clause  of  stfte  office 

■^  ^  does  not 

the  United  States  Constitution,  which  would  justify  J,"oc«sunf 
the  interference  of  the  United  States  Supreme  Court  t''e^enti°"'^' 
with  the  determination  of  the  proper  State  authori-  mem. 
ties.'' 

The  case  is  different  with  the  right  to  pursue  a  p^oF*^ 
private  profession,  calling,  or  business,  such  as  that 
of  a  clergyman,^  lawyer,^   or  physician.^     This  is 

9  Taylor  v.  Beckham,  178  U,  S.  548,  was  the  first  case  in  which 
this  point  was  directly  determined,  and  a  writ  of  error  to  the  Su- 
preme Court  of  a  State  dismissed.  In  Wilson  v.  North  Carolina, 
169  U.  S.  586,  the  wi'it  was  also  dismissed,  but  not  squarely  on  the 
ground  that  no  federal  question  could  be  involved.  The  court  said: 
"  Upon  the  case  made  by  the  plaintiff  in  error,  the  federal  questioi 
which  he  attempts  to  raise  is  so  unfounded  in  substance  that  w 
are  justified  in  saying  that  it  does  not  really  exist."  Boyd  v.  Ne- 
braska, 143  U.  S.  155,  was  entertained  because  it  presented  the 
rights  of  a  citizen  of  the  United  States.  The  writs  in  two  earlier 
cases,  involving  the  right  to  public  office,  Kennard  v.  Louisiana,  92 
U.  S.  480,  and  Foster  V.  Kansas,  112  U.  S.  201,  were  entertained, 
the  decisions  of  the  State  court  in  each  case  being  afiirmed  on  the 
ground  that  due  process  was  present.  These  cases  are  distinguished 
in  Taylor  v.  Beckham,  178  U.  S.  548,  on  the  ground  that  "  the  con- 
stitutionality of  the  statute  under  which  the  disputed  title  to  office 
was  tried  was  drawn  in  question."  See  the  dissenting  opinions  of 
Brewer,  Brown  and  ITarlan,  JJ.,  in  the  case  last  cited.  In  his 
opinion,  Mr.  Justice  Brewer  said :  "  I  am  clear,  as  a  matter  of 
principle,  that  an  office  to  which  a  salary  is  attached  is,  as  between 
two  contestants  for  such  office,  to  be  considered  a  matter  of  prop- 
erty. I  agree  fully  with  those  decisions  which  are  referred  to  and 
which  hold  that  as  between  the  State  and  the  office  holder  there  is 
no  contract  right  either  to  the  term  of  office  or  to  the  amount  of 
salary,  and  that  the  legislature  may  if  not  restrained  by  constitu- 
tional provisions  abolish  the  office  or  reduce  the  salary.  .  .  . 
WTiile  not  concurring  in  the  order  of  dismissal,  I  am  of  opinion 
that  the  judgment  of  the  Court  of  Appeals  of  Kentucky  should  be 
aflfirmed." 

1  Cummings  V.  Missouri,  4  Wall.    (U.  S.)   277. 

2  Ex  p.  Garland,  4  Wall.  (U.  S.)   333. 

3  Dent  V.  West  Virginia,  129  U.  S.  114. 


336  DUE  PROCESS  OF  LAW 

Chapter    property,  of  which  a  person  may  not  be  deprived 
- — '—    except  with  due  process  of  law.     But  this  does  not 

prevent  the  State  from  regulating  such  callings  in 

the  interest  of  the  public  welfare.* 

Limiting  the  Enjoyment  of  Property. 

vaiue°to  -^  valid  regulatiou  by  the  legislature  in  the  inter- 

B°^itioI  est  of  public  health,  morals  or  safety,  although  it 
pf  business.  ^^^^  greatly  lessen  or  destroy  the  value  of  property 
embarked  in  some  business  regulated  or  prohibited, 
is  not  a  taking  of  property  for  public  purposes, 
which  requires  compensation  to  its  owner.  It  is 
one  of  the  implied  conditions  on  which  all  private 
property  is  held  and  an  unplied  risk  to  which  all 
business  ventures  are  subject,  that  the  State  may 
in  the  exercise  of  the  police  power  require  the  dis- 
continuance of  the  traffic  or  manufacture  to  which 
the  property  is  devoted.  The  inconvenience  and 
loss  which  individuals  suffer  in  consequence  does 
not  violate  any  fundamental  right  or  require  any 
compensation.^ 
Requiring  The  disposal  of  ararbage  in  cities  is  a  matter  within 

disposition  ■■•  o  cj 

fnfwayto  the  coutrol  of  the  police  power  acting  for  the  pres- 
ervation of  the  public  health,  and  the  fact  that  the 
garbage  or  refuse  may  have  elements  of  value  does 
not  render  an  ordinance  providing  for  its  trans- 
portation in  a  given  manner  and  its  destruction  and 

4  See  Reetz  v.  Michigan,  188  U.  S.  505,  and  infra,  p.  346. 

B  Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  32;  Northwestern 
Fertilizer  Co.  r.  Hyde  Park,  97  U.  S.  659;  Stone  v.  Mississippi,  101 
U.  S.  814;  Mugler  V.  Kansas,  123  U.  S.  623.  Compare  the  sugges- 
tive essay  of  Mr.  Brooks  Adams  on  Law  under  Inequality.  He  finds 
in  instances  such  as  these  but  an  illustration  of  practical  confisca- 
tion exerted  by  a  sentiment  which  has  become  dominant  against  ob- 
noxious property  rights.     Centralization  and  the  Law,  p.   108. 


deprive  its 
owner 


DUE  PROCESS  OF  LAW  337 

cremation  a  taking  of  property  without  due  process    Chapter 
of  law.     The  property  rights  of  individuals  in  the  __^___ 
noxious  materials  must  be  subordinated  to  the  gen- 
eral good.*^ 

Confiscation  of  Property. 

The  legislature  may  go  further  and  provide  for  f^^i^^' 
the  confiscation  and  destruction  of  property  in  cer-  p^^^^^^- 
tain  circumstances,  as  a  penalty  attached  to  its  mis- 
use in  designated  waysJ  Legislation  forfeiting 
gaming  instruments,^  articles  used  in  connection 
with  the  illegal  sale  of  liquors  and  the  liquors  them- 
selves,^ property  seized  for  the  violation  of  the  rev- 
enue laws,^  vessels  violating  the  regulation  of  the 
right  to  fish,2  and  a  host  of  similar  laws  illustrate 
the  proposition. 

Property  may  be  made  subject  to  a  lien  for  penal-  ^Ifp^/r^ty  ^ 
ties  arising  from  its  misuse,  or  the  wrong-doing  of  k!rabfe"for 
its  owner,  without  violating  the  due  process  clause  of  quences. 
the  Constitution,  and  it  matters  not  that  the  penalty 
is  given  to  a  common  informer.     A  law  of  Ohio  made 
a  judgment  for  money  lost  at  play  a  lien  on  the  real 
and  personal  property  of  the  judgment  debtor  and  a 
lien  likewise  on  the  building  where  the  money  was 
lost,  if  the  building  was  used  for  gaming  with  the 
owner's  knowledge,  and  in  the  event  that  the  loser 

6  California   Reduction  Co.  V.  Sanitary  Reduction  Worlcs,   199   U. 
S.  306;  Gardner  v.  Michigan,  199  U.  S.  325. 

7  See  Fisher  v.  McGirr,  1  Gray   (Mass.)   1,  quoted  supra,  p.  204, 

8  Ridgeway  r.  West,   GO  Ind.   371;    Com.   v.  Gaming  Implements, 
119  Mass.   332;   Hastings  v.  Haug.  85  Mich.   87. 

sMugler  v.  Kansas,  123  U.  S.  623;  Kidd  v.  Pearson,  128  U.  S.  1. 

1  See  the  title  Revenue  Laws,  24  Am.  and  Eng.  Encyc.  of  Law 
(2d  ed.)  930. 

2  The  Alexander,  60  Fed.  Rep.  914;  McCandlish  v.  Com.,  76  Va. 
1002. 

22 


338  DUE  PKOCESS  OF  LAW 


Chapter    ^{^  not  bring;  suit  within  six  months  after  the  loss, 

IX 

— — —  gave  the  right  of  recovery  to  any  person  suing  for 
the  same.  Under  this  statute,  the  loser's  wife,  after 
recovering  judgment  against  the  winners,  brought 
an  action  to  make  the  judgment  a  lien  on  the  build- 
ing wherein  the  money  was  lost.  The  Supreme 
Court  of  the  United  States  upheld  the  validity  of 
the  statute  as  against  the  objection  that  it  consti- 
tutes a  denial  of  due  process  of  law.^ 

Consequential  Damage  from  Police  Regulation. 

Losses  in  The  Same  principles  apply  when  the  police  regu- 

consequen-  latlou  of  some  vocation  depreciates  the  value  of 
tiai  merely.  pj,Qpgj.^y  'j^  ^^  ^^y  counectcd  with  the  calling  reg- 
ulated. Such  loss  is  simply  consequential,  damnum 
absque  injuria.  The  city  of  New  Orleans  in  the 
exercise  of  its  power  to  regulate  prostitution  in  the 
interest  of  public  morals  and  decency,  passed  an  or- 
dinance removing  from  a  designated  street  of  the 
city  the  protection  of  an  inhibition  previously  exist- 
ing against  any  public  prostitute  occupying  a  room, 
living  or  sleeping  therein.  Property  owners  within 
the  specified  limits  attacked  the  ordinance  on  the 
ground  that  it  deprived  them  of  property  without 
due  process  of  law,  but  the  Federal  Supreme  Court 
held  that  the  ordinance  was  valid.  After  stating 
cases,  like  those  referred  to  above,  where  injury 
resulting  directly  from  the  exercise  of  the  legisla- 
ture's police  power  was  held  to  give  the  property 
owner  no  right  of  complaint  against  the  State,  it 
was  said:  ''If  under  such  circumstances  the  indi- 
vidual has  no  cause  of  action,  a  fortiori  must  the 

8  Marvin  v.  Trout,  199  U.  S.  212. 


DUE  PROCESS  OF  LAW  339 

same  be  true  when  the  injuries  are  not  direct  but    Chapter 

consequential,    when   his   property   is    not   directly  — — • 

touched  by  the  legislative  action  but  is  affected  in 
only  an  incidental  and  consequential  way.  Here 
the  ordinance  in  no  manner  touched  the  property  of 
the  plaintiffs.  It  subjected  that  property  to  no 
burden,  it  cast  no  duty  or  restraint  upon  it,  and 
only  in  an  indirect  way  can  it  be  said  that  its  pecu- 
niary value  was  affected  by  this  ordinance.  Who 
can  say  in  advance  that  in  proximity  to  their  prop- 
erty any  houses  of  the  character  indicated  will  be 
established,  or  that  any  persons  of  loose  character 
will  find  near  by  a  home  ?  They  may  go  to  the  other 
end  of  the  named  district."  ^ 

Imposition  of  Expense   Connected  tvith  Police 
Regulation. 

When  certain  acts  or  precautions  are  demanded  ^e^'Son* 
in  the  interest  of  the  public  health  or  safety,  the  ex-  ££ff|. 
penses  incident  thereto  may  be  required,  without  a 
deprivation  of  due  process  of  law,  to  be  borne  by  the 
owners  of  the  property  or  business  out  of  which  the 
necessity  for  the  acts  or  precautions  arises.  Quar- 
antine regulations  being  adopted  for  the  protection 
of  the  public  against  the  spread  of  disease,  the  re- 
quirement that  the  vessel  examined  shall  pay  for 
the  examination  is  a  part  of  all  systems  of  quar- 
antine ;  ^  and  householders  in  a  city  may  be  re- 
quired to  bear  the  expense  of  the  transportation  of 
garbage  to  the  place  provided  for  its  cremation.® 

*  L'Hote  V.  New  Orleans,  177  U.  S.  587. 

5  Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Health,  118  U. 
S.  466. 

6' California  Reduction  Co.  v.  Sanitary  Reduction  Works,  199  U. 
S.  306. 


340  DUE  PROCESS  OF  LAW 


Chapter  The  expense  of  a  compulsory  examination  of  rail- 


IX 

— — —  road  engineers,  to  ascertain  whether  they  are  free 
IwSrt  from  color  blindness,  has  been  held  to  be  properly 
chargeable  against  the  railroad  companies^  So 
the  expenses  of  a  railroad  commission  may  be 
charged  against  the  railroad  corporations  f  of  min- 
ing inspectors,  against  the  owners  of  mines  ;^  of 
sanitary  improvements,  against  the  owners  of  the 
tenement  houses  in  which  the  improvements  are  re- 
quired ;^  of  constructing  and  maintaining  such  safe- 
guards as  are  required  to  protect  the  public  safety 
in  connection  with  the  operation  of  railroads, 
against  the  railroad  companies.^ 

Expenses  Such  exactious  may  be  made  of  corporations  con- 

fer im-  '' 

ciHdef/o'    ducting  business  charged  with  a  public  interest,  al- 
$»a°i'pub^^  though  the  requirement  is  merely  for  the  conveni- 

lie  corpora-  ,  -r-»     ••!  t  i  •         i    i. 

tions.  ence  of  the  public.  Railroads  may  be  required  to 
make  specific  improvements  at  their  own  cost.^  The 
imposition  of  tolls  by  a  State  statute  upon  those 
using  an  improved  interior  waterway  in  order  to  re- 
imburse the  State  for  the  expense  of  improvements 
is  not  a  deprivation  of  property  without  due  process 

7  Nashville,  etc.,  R.  Co.  v.  Alabama,  128  U.  S.  96. 

8  Charlotte,  etc.,  R.  Co.  v.  Gibbes,  142  U.  S.  386 ;  New  York  v. 
Squire,  145  U.  S.  175. 

»  Consolidated  Coal  Co.  v.  Illinois,  185  U.  S.  20.3,  207. 

1  Health  Dept.  v.  Trinity  Church,  145  N.  Y.  32. 

2  New  York,  etc.,  R.  Co.  v.  Bristol,  151  U.  S.  556  (eliminating 
grade  crossings)  ;  Chicago,  etc.,  R.  Co.  v.  Nebraska,  170  U.  S.  57 
(maintenance  of  viaduct). 

3  Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  173  U.  S.  285  (enforcement  of 
statute  requiring  railroads  to  stop  trains  in  cities  of  a  certain  size)  ; 
Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  179  U.  S.  287  (enforcement  of 
track  connections  between  railroads  upheld)  ;  State  v.  Minnesota, 
etc.,  R.  Co.,  76  Minn.  469,  479  (requirement  of  station  held  unrea- 
sonable) ;  People  V.  Boston,  etc.,  R.  Co.,  70  N.  Y.  569  (required  to 
build  a  bridge). 


DUE  PROCESS  OF  LAW  341 

of  law.    The  making  of  such  improvements  lies  in  the    Chapter 

discretion  of  the  State,  and  to  meet  the  cost  involved  

it  rests  with  the  State  either  to  levy  a  tax  or  lay 
tolls  on  the  use  of  the  improved  stream.  Such  tolls 
are  merely  equivalents  for  benefits  conferred.^  A 
gas  company  furnishing  gas  to  a  city  under  an 
exclusive  contract  may  be  required,  upon  improve- 
ments in  the  drainage  system  of  the  city,  to  pay 
the  cost  of  shifting  its  pipes  and  mains  rendered 
necessary  by  such  improvements,  and  the  re- 
quirement of  payment  in  no  way  affects  the  obli- 
gation of  the  contract  between  the  city  and  the  com- 
pany.'* 

It  has  been  said  that  the  expense  imposed  must  J^JSten'r 
be  a  reasonable,  proper  and  fair  exaction  when  con-  t°ion"^°^^' 
sidered  with  reference  to  the  object  to  be  attained 
and  the  surrounding  facts.  In  a  case  involving  the 
legality  of  imposing  the  costs  of  sanitary  improve- 
ments in  a  tenement  house  upon  its  owner,  the  cost, 
it  was  declared,  must  ''not  exceed  what  may  be 
termed  one  of  the  conditions  upon  which  individual 
property  is  held."  One  of  the  conditions  is  that 
the  property  must  not  improperly  cause  harm  to  the 
public,  and  the  legislature  may  therefore  require 
such  expenditure  on  the  part  of  the  owner  as  will 
guard  ''the  health  and  safety  of  the  occupants  and 
of  the  public  through  them. ' '  ^ 

*Huse  V.  Glover,  119  U.  S.  543;  Sands  v.  Manistee  River  Imp. 
Co.,  123  U.  S.  288. 

5  New  Orleans  Gas  Light  Co.  v.  Drainage  Commission,  197  U.  S. 
453. 

«  Health  Dept.  v.  Trinity  Church,  145  N.  Y.  32,  42. 


342 


DUE  PROCESS  OF  LAW 


Chapter 

^-       Creation  of  Liabilities  Connected  with  Enjoyment 


Creation  of 
liabilities 
connected 
with  cer- 
tain uses  of 
property. 


Illustra- 
tions from 
railroads. 


Further 
illustra- 
tions. 


of  Property  or  Occupation. 

The  doctrine  which  makes  every  one  responsible 
for  the  use  of  his  own  in  such  a  way  as  not  to  injure 
others,  lies  at  the  basis  of  laws  which  cast  peculiar 
responsibilities  upon  the  owners  of  property  de- 
voted to  enterprises  which,  though  lawful  or  even 
necessar}^,  are  especially  liable  to  cause  damage  to 
others,  or  upon  the  owners  of  property  who  allow  it 
to  be  devoted  to  unlawful  occupations. 

Illustrations  are  laws  requiring  railroad  compa- 
nies to  fence  their  rights  of  way  and  making  them 
responsible  for  all  damages  sustained  in  conse- 
quence of  a  failure  to  do  so;'^  liable  absolutely  for 
fires  caused  by  locomotives  f  answerable  in  a  penal 
action  to  contiguous  landowners  for  allowing  John- 
son grass  to  mature  on  the  right  of  way;^  statutes 
extending  the  liability  of  a  common  carrier  of  goods 
to  carriers  of  passengers;^  or  depriving  railroads, 
when  sued  by  an  employee  for  injuries,  of  the  de- 
fense that  the  injuries  were  due  to  the  negligence  of 
a  fellow  servant.^ 

Persons  driving  cattle  along  highways  may  be 
made  absolutely  liable  for  injuries  caused  to  the 
highways.^  A  number  of  enactments  make  the 
owners  of  property  answerable  for  damages  result- 

7  Missouri  Pac.  R.  Co.  v.  Humes,  115  U.  S.  512;  Minneapolis,  etc., 
R.  Co.  r.  Emmons,  149  U.  S.  364.     See  supra,  p.  313. 

8  St.  Ix)uis,  etc.,  R.  Co.  v.  Mathews,  165  U.  S.  1.     See  supra,  p.  186. 
»  Missouri,  etc.,  R.  Co.  v.  May,  194  U.  S.  267. 

1  Chicago,  etc.,  R.  Co.  v.  Zernecke,  183  U.  S.  582. 

2  Missouri  Pac.  R.  Co.  v.  Mackey,  127  U.  S.  205.  See  supra, 
p.  313. 

8  Jones  V.  Brim,  165  U.  S.  180.     See  supra,  p.  186. 


DUE  PROCESS  OF  LAW  343 

ing  from  its  use  for  unlawful  purposes,  as  gam-    Chapter 

bling;"*  or  for  its  misuse  in  pursuits,  such  as  the  sale  

of  intoxicating  liquors,  which  are  carefully  regu- 
lated in  behalf  of  the  public  welfare.^ 

The  exercise  of  the  police  power  in  the  creation  of 
such  liabilities  is  subject  to  the  usual  limitation  of 
reasonableness,  and  classification  based  on  real  dis- 
tinctions. 

DEPRIVATION   OF   LIBERTY. 

The  liberty  which  is  secured  by  the  Constitution  J^'rlSto" 
is  not  unrestricted  license  to  act  according  to  one's  puLory™' 

vaccina- 

own  will.  It  is  only  freedom  from  restraint  upon  tion. 
conditions  essential  to  the  enjoyment  of  the  same 
right  by  others,  and  is  subject  to  regulation  by  the 
State  in  the  exercise  of  its  police  power.*^  The  ob- 
servance of  all  such  measures  and  precautions  as 
the  State  deems  vital  for  the  protection  of  public 
health,  safety,  morals  or  welfare  may  be  enforced 
upon  all  citizens  and  residents  without  regard  to 
their  own  private  views  of  the  wisdom  or  beneficial 
effect  of  the  measures  adopted.  Compulsory  vac- 
cination prescribed  by  the  State  or  its  proper  au- 
thorities may  be  enforced  against  all  members  of 
the  community.  It  is  matter  of  common  knowledge 
that  vaccination  is  considered  by  high  medical  au- 
thority as  an  effective  prevention  of  the  spread  of 
smallpox,  and  the  court  would  be  usurping  legisla- 
tive functions  if  it  undertook  to  detennine  against 

4  Marvin  V.  Trout,  109  U.  S.  212.     See  supra,  p.  337. 

5  Bertholf  V.  O'Reilly,  74  N.  Y.  509,  upholding  the  constitution- 
ality of  a  provision  in  a  civil  damage  act,  making  the  owner  of  the 
premises  whereon  liquor  was  sold  liable  for  the  consequences  of  in- 
toxication produced  there. 

«  Crowley  v.  Christensen,  137  U.  S.  86. 


344 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Restraint 
on  lunatics 
and  incom- 
petents. 


its  efficiency  and  so  to  pronounce  that  there  was  no 
connection  between  a  legitimate  object  of  the  police 
power,  the  prevention  of  infectious  diseases,  and  the 
means  adopted,  vaccination.^  As  the  State  may  in- 
terfere directly  with  freedom,  it  can  not  be  a  valid 
objection  to  legislation  that  incidentally  and  re- 
motely liberty  is  affected  by  it.^ 

The  State  as  parens  patriae  may  extend  its  care 
over  and  protect  the  interests  of  incompetents,  such 
as  insane  or  weak-minded  persons  and  children. 
The  liberty  of  these  classes  with  respect  to  their 
persons  and  their  property  rights  may  be  regulated 
for  the  welfare  of  the  individuals  themselves  and 
for  the  protection  of  the  community  at  large.  In 
the  exercise  of  this  power  the  State  may  provide  for 
the  involuntary  confinement  of  the  insane  until  the 
restoration  of  their  reason,  and  this  whether  the 
insane  person  is  dangerous  and  criminal  or  entirely 
harmless.^  The  same  principles  sanction  statutes 
which  provide  for  the  confinement  of  young  crim- 
inals in  ''homes  of  correction"  or  "reformatories," 
in  which  "education  for  good  is  made  a  condition 
of  their  restraint ;"  ^  statutes  allowing  indeterminate 

7  Jacobson  v.  Massachusetts,  197  U.  S.  11,  affirming  183  Mass. 
242;  Morris  v.  Columbus,  102  Ga.  792;  State  V.  Hay,  126  N.  Car.  999. 

Compulsory  vaccination  regulations  established  by  boards  of 
health  or  health  officers  have  been  held  to  be  under  the  circum- 
stances of  the  case  unreasonable  and  an  unwarranted  interference 
with  the  liberty  of  the  citizen.  Potts  V.  Breen,  167  111.  67,  59  Am. 
St.  Rep.  263;  Matter  of  Smith,  146  N.  Y.  68,  48  Am.  St.  Rep.  769; 
State  V.  Burdge,  95  Wis.  390. 

8  Williams  v.  Fears,  179  U.  S.  270. 

1  Simon  v.  Craft,  182  U.  S.  436,  affirming  118  Ala.  625;  Under- 
wood V.  People,  32  Mich.  1;  In  re  Boyett,  136  N.  Car.  415. 

2  Milwaukee  Industrial  School  v.  Milwaukee  County,  40  Wis.  328. 
And  see  the  title  Houses  of  Refuge  and  Correction,  15  Am.  and 
Eng.  Encyc.  of  Law   (2d  ed.)   777. 


DUE  PROCESS  OF  LAW  345 

sentences,^  and  other  statutes  varying  the  degree  of    chapter 

restraint  with  the  purpose  of  adapting  punishment  

to  the  good  of  particular  classes.^ 

Freedom  of  Contract  and  Business. 

Although  freedom  and  the  liberty  to  contract  are 
fundamental  rights  within  the  guaranties  of  the 
Constitution,  they  may  be  limited  by  the  State  in 
the  exercise  of  the  police  power  in  the  interest  of 
public  safety,  health,  or  morals,  or,  under  certain 
conditions,  in  the  exercise  of  the  legislative  power 
merely. 

Regulated  for  Public  Morals,  Health,  or  Safety. 

Liberty  does  not  include  the  right  to  carry  on  a  I'^^^l^}^ 
business  injurious  to  the  public  health  or  morals,  patlon""' 
or  the  right  to  enter  into  unmoral  contracts.^  To 
determine  what  contracts  or  what  occupations  are 
injurious  to  public  health  or  morals  rests  in  the  leg- 
islature exercising  the  police  power,  and  the  courts 
cannot  interfere  with  its  decision,  ''unless,  looking 
through  mere  forms  and  at  the  substance  of  the 
matter,  they  can  say  that  the  statute  enacted  pro- 
fessedly to  protect  the  public  morals  [or  health]  has 
no  real  or  substantial  relation  to  that  object,  but 
is  a  clear,  unmistakable  infringement  of  rights  se- 
cured by  the  fundamental  law."® 

3  Murphy  r.  Com.,  172  Mass.  264.  And  see  the  same  case,  Mur- 
phy V.  Massachusetts,  177  U.  S.  155. 

*  See  the  titles  Reprieve,  Pardon  and  Amnesty,  24  Am.  and  Eng. 
Encyc.  of  Law  (2d  ed.)  547;  Sentence  and  Punishment,  25  id.  289. 

5  Soon  Hing  V.  Crowley,  113  U.  S.  703. 

«  Booth  V.  Illinois,  184  U.  S.  425,  429. 


346 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Illustra- 
tions. 


Regula- 
tions for 
the  public 
health  and 
safety. 


The  practice  of  prostitution,'^  and  the  manufac- 
ture of,  or  traffic  in,  intoxicating  liquors  may  be 
]3rohibited  or  regulated  by  the  State.^  Gaming  and 
gambling  contracts  and  the  business  of  lotteries 
may  be  prohibited.^  Dealing  in  options  and  futures 
and  the  sale  of  stocks  on  margins  are  legitimate 
subjects  of  police  legislation.^  "A  calling  may  not 
in  itself  be  immoral,  and  yet  the  tendency  of  what 
is  generally  or  ordinarily  or  often  done  in  pursuing 
that  calling  may  be  towards  that  which  is  admit- 
tedly immoral  or  pernicious.  ...  It  must  be 
assumed  that  the  legislature  was  of  opinion  that 
an  effectual  mode  to  suppress  gambling  grain  con- 
tracts was  to  declare  illegal  all  options  to  sell  or 
buy  at  a  future  time.  The  court  is  unable  to  say 
that  the  means  employed  were  not  appropriate  to 
the  end  sought  to  be  attained  and  which  it  was  com- 
petent for  the  State  to  accomplish."  ^  The  police 
power  extends  to  make  punishable  a  visit  to  "any 
barred  or  barricaded  house  or  room"  wherein  gam- 
bling instruments  are  exhibited,  and  one  convicted 
of  the  offense  is  not  deprived  of  his  liberty  without 
due  process  of  law,  because  his  visit  was  made  inno- 
cently.^ 

In  providing  for  the  safety  and  health  of  the  pub- 
lic, the  business  of  dealing  in  dangerous  substances, 

7  L'Hote  V.  New  Orleans,  177  U.  S.  587. 

sMugler  v.  Kansas,  123  U.  S.  623;  Kidd  v.  Pearson,  128  U.  S. 
16;  Foppiano  v.  Speed,  199  U.  S.  501. 

9  Stone  V.  Mississippi,  101  U.  S.  814;  Lottery  Case,  188  U.  S. 
321;  Ah  Sin  v.  Wittman,  198  U.  S.  500,  506. 

1  Otis  V.  Parker,  187  U.  S.  606. 

2  Booth  V.  Illinois,  184  U.  S.  425,  429,  430.  And  see  Otis  v. 
Parker.  187  U.  S.  G06. 

3  Ah  Sin  V.  Wittman,  198  U.  S.  500. 


DUE  PROCESS  OF  LAW  347 

such  as  explosives,^  and  the  conduct  of  unsanitary    Chapter 

and  offensive  trades,^  the  regulation  of  the  sale  of  

articles  such  as  milk,  whose  purity  affects  the  pub- 
lie,^  may  be  regulated.  Laws  providing  for  the 
examination  and  licensing  of  physicians  before 
State  medical  boards,^  and  quarantine  laws  ^  have 
been  held  a  proper  exercise  of  the  State's  power  to 
protect  public  health  and  safety. 

The  hours  of  labor  in  dangerous  employments  i^bor?°^ 
may  be  limited.^  The  legislative  action  may  extend 
no  further  than  the  limitation  of  working  hours 
for  certain  classes,  as  women  and  children,  to  whom 
prolonged  employment  at  labor  otherwise  harmless 
is  considered  especially  dangerous.^  And  the  State 
may  absolutely  interdict  certain  employments  to 
children  although  their  parents  approve  of  such  em- 
ployments for  them.^ 

The  prevention  of  fraud  is  a  valid  ground  for  J/frluJ."" 
legislative  action  as  to  contracts,  and  for  the  sup- 


4  Patterson  v.  Kentucky,  97  U.  S.  501. 

5  Slaughter-House  Cases,  16  Wall.  (U.  S.)  36;  Butcher's  Union 
Slaughter-House,  etc.,  Co.  v.  Crescent  City  Live-Stock  Landing,  etc., 
Co.,  Ill  U.  S.  746. 

The  keeping  of  markets  may  be  regulated,  and  private  markets 
may  be  prohibited  within  a  certain  distance  of  public  markets. 
Natal  V.  Louisiana,  139  U.  S.  621. 

6  New  York  v.  Van  De  Carr,  199  U.  S.  552. 

7  Dent  r.  West  Virginia,  129  U.  S.  114;  Hawker  V.  New  York,  170 
U.  S.  189;  Reetz  v.  Michigan,  188  U.  S.  505. 

8  Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.  455. 

LTnder  the  circumstances  of  the  cases  quarantine  regulations 
have  been  held  an  unreasonable  interference  with  liberty.  Hurst  v. 
Warner,  102  Mich.  238;  Kosciusko  v.  Slomberg,  68  Miss.  449;  Wilson 
i\  Alabama  G.  S.  R.  Co.,  77  Miss.  714;  Matter  of  Smith,  146  N.  Y.  68. 

9  Holden  r.  Hardy,   169  U.  S.  366. 

1  Com.  r.  Hamilton  Mfg.  Co.,  120  Mass.  383. 

2  People  V.  Ewer,  141  N.  Y.  129. 


348 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Oleomar- 
garine. 


pression  or  regulation  of  particular  occupations.  A 
striking  instance  are  the  statutes  of  frauds  which  for 
the  prevention  ''of  frauds  and  perjuries"  regulate 
the  forms  which  certain  contracts  shall  take.  Stat- 
utes regulating  the  time  and  method  of  disposing  of 
a  staple  agricultural  product  of  the  State,  froiii  its 
nature  peculiarly  exposed  to  theft,  have  been  upheld 
as  within  the  police  power.^ 

An  illustration  of  the  application  and  limitation 
of  this  principle  as  applied  to  particular  occupations 
is  found  in  statutes  prohibiting  or  regulating  the 
manufacture  and  sale  of  oleomargarine.  It  has  been 
held  by  the  Supreme  Court  of  the  United  States'  that 
the  State  might  absolutely  prohibit  the  manufacture 
and  sale  of  oleomargarine,  and  the  person  whose  lib- 
erty was  thus  curtailed  was  not  deprived  of  liberty 
within  the  Fourteenth  Amendment.  The  court  based 
its  ruling  on  the  fact  that  there  was  no  evidence  in  the 
record  to  show  that  oleomargarine  was  not  often 
composed  of  ingredients  deleterious  to  health,  and  it 
could  not  assume,  in  default  of  evidence  of  the  fact, 
that  all  oleomargarine  was  harmless,  because  of 
testimony  that  that  manufactured  by  the  defendant 
was  so ;  that  it  could  not  say  that  there  was  no  rela- 
tion between  the  prohibitions  of  the  act  and  the 
public  health  and  the  prevention  of  fraud,  which 
were  the  specific  grounds  of  the  legislation.  Fraud 
in  the  sale,  that  is,  an  effort  to  palm  off  on  the  public 
the  manufactured  article  for  natural  butter,  could 
not  well  be  alleged  in  this  case  because  the  article 


3  Davis  V.  state,  68  Ala.  58;  State  v.  Moore,  104  N.  Car.  714. 
These  statutes  prohibited  moving  seed  cotton  at  night,  or  its  sale 
in  small  quantities  under  certain  restrictions. 


DUE  PROCESS  OF  LAW  349 

was  labeled  and  sold  as  ' ' oleomargarine. ' '  ^  /Many    Chapter 

State  courts  have  held  that,  since  oleomargarine  is  a  

nutritious  and  harmless  substance  used  as  food,  the 
State  cannot  without  infringing  upon  liberty  pro- 
hibit its  manufacture  and  sale ;  ^  but  it  may  prevent 
its  manufacture  and  sale  with  an  intermixture  of 
coloring  matter  making  it  liable  to  be  mistaken  for 
butter,  for  the  police  power  extends  to  prevent 
frauds  and  deceptions,  and  it  is  no  defense  that  the 
substituted  article  is  a  healthful  article  of  food.® 
The  later  cases  in  the  Federal  Suj^reme  Court  have 
rested  on  this  last  proposition  only,^|and  it  has  been 
held  beyond  the  power  of  the  State  to  exclude  oleo- 
margarine entirely  on  the  ground  that  it  might  be 
so  adulterated  as  to  be  harmful,^  since  oleomar- 
garine as  such  has  become  a  recognized  article  of 
interstate  commerce.^ 

Business  Affected  with  Public  Interest. 

The  purely  legislative  powers,  when  the  public 
health,  safety,  or  morals  are  not  concerned,  may  be 
employed  in  making  regulations  based  on  a  proper 
classification  for  a  business  affected  with  a  public 
interest,  if  regard  be  had  to  the  sacredness  of  vested 
rights  and  to  the  obligations  of  contracts  already 
entered    into  bv  the  State. ^     A  statute    requiring  Railroad 

■^  companies. 

4  Powell  V.  Pennsylvania,  127  U.  S.  678. 

5  People  V.  Marx,  99  N.  Y.  377. 

6  McAllister  v.  State,  72  Md.  390;  State  t'.  Addington,  77  Mo. 
110;  State  V.  Marshall,  64  N.  H.  549;  Waterbury  r.  Newton,  50  N. 
J.  L.  534;  People  r.  Arensberg,  105  N.  Y.  123. 

7  Plumley  v.  Massachusetts,  155  U.  S.  461;  Capitol  City  Dairy 
Co.  V.  Ohio.  183  U.  S.  238. 

8  Schollenberger  r.  Pennsylvania,  171  U.  S.  1. 

9  In  re  Kollock,  165  U.  S.  536 ;  McCray  r.  U.  S.,  195  U.  S.  27. 
1  St.  Louis,  etc.,  R.  Co.  v.  Paul,  173  U.  S.  404. 


550  DUE  PROCESS  OF  LAW 


Chapter    railroad  companies  to  pay  employees  discharged  with 
'■ —  or  without  cause,  at  the  time  of  the  discharge,  with 


lie  corpora- 


out  any  deduction  and  providing  a  penalty  in  case  of 
failure  to  do  so,  was  sustained  against  the  objection 
that  it  was  a  denial  of  due  process  of  law.  The  act 
was  found  to  be  purely  prospective,  not  to  interfere 
with  existing  contracts  or  vested  rights,  and  not  to 
destroy,  or  "sensibly  encroach  ui^on,"  the  right  to 
contract.  It  was  a  jproper  regulation  "promoting 
the  ]3ublic  interest  in  the  protection  of  employees. ' '  ^ 
disir"imina-  ^  gwttsi-public  corporatlou,  though  its  business 
S"i-pub-'^  is  undoubtedly  affected  with  a  public  interest,  can 
not  be  singled  out  for  regulation  in  regard  to  a 
duty,  such  as  the  payment  of  debts,  which  rests  in 
no  special  sense  on  corporations,  but  is  equally  ob- 
ligatory on  all  debtors.  A  statute  penalizing  the 
non-performance  by  railroad  companies  alone  of 
such  a  duty  is  invalid,  the  penalty  not  being  inflicted 
on  any  comprehensible  ground,  such  as  the  pro- 
tection of  laborers,  the  prevention  of  trifling  liti- 
gation, or  in  consideration  of  special  corporate 
privileges.^     On  the  other  hand,  a  statute  allowing  to 

In  Gundling  v.  Chicago,  177  U.  S.  188,  it  is  said:  "  Regulations 
respecting  the  pursuit  of  a  lawful  trade  or  business  are  of  very  fre- 
quent occurrence  in  the  variovis  cities  of  the  country,  and  what  such 
regulations  shall  be  and  to  what  particular  trade,  business  or  occupa- 
tion they  shall  apply  are  questions  for  the  State  to  determine,  and 
their  determination  comes  within  the  proper  exercise  of  the  police 
power  by  the  State,  and  unless  the  regulations  are  so  utterly  unrea- 
sonable and  extravagant  in  their  nature  and  purpose  that  the  prop- 
erty and  personal  rights  of  the  citizen  are  unnecessarily,  and  in  a 
manner  wholly  arbitrary,  interfered  with  or  destroyed  without  due 
process  of  law,  they  do  not  extend  beyond  the  power  of  the  State  to 
pass,  and  they  form  no  subject  for  federal  interference." 

2  St.  Louis,  etc.,  R.  Co.  v.  Paul,  173  U.  S.  404. 

3  Gulf,  etc.,  R.  Co.  f.  Ellis,  165  U.  S.  1.50,  holding  void  a  Texas 
statute  requiring  railroads  to  pay  an  attorney's  fee  of  ten  dollars  in 


DUE  PROCESS  OF  LAW  351 


the  plaintiff  a  reasonable  attorney's  fee  in   suits    chapter 

against   railroad   companies    for   damages   by   fire  

caused  by  the  operation  of  railroads  has  been  held, 
in  view  of  the  peculiar  danger  of  fire  from  such 
sources,  to  be  valid  and  based  on  classification,  not 
on  arbitrary  selection.^ 

The  business  of  conducting  elevators  and  ware-  S^tor"sand 
houses  on  railroad  rights  of  way  may  be  subjected  houses. 
to  conditions  not  provided  for  the  same  business  in 
other  locations.^ 

The  business  of  insurance  is  subject  to  State  insurance. 
regulation,  and  such  regulation  if  founded  on  reason- 
able classification  is  valid.  Liabilities  not  shared 
by  all  insurance  companies  may  be  imposed  on  life 
insurance  companies,''  or  fire  insurance  companies,^ 
and  the  court  cannot  pronounce  the  statutes  void  for 
arbitrary  selection.  The  legislature  may  insert  cer- 
tain statutory  terms  in  insurance  policies  and  nullify 
any  stipulation  in  the  policy  to  the  contrary.^ 

A  State  statute  which,  under  the  guise  of  control-  S^reguilte 

,  .  .         contracts 

ling  foreign  insurance  companies  domg  busmess  m  1^^°^"^^ 
the  State,  operates  as  interpreted  by  the  State 
Supreme  Court  to  prevent  a  citizen  of  the  State 
from  availing  himself  in  an  effective  way  of  a  con- 
tract of  insurance  made  beyond  the  State  in  a  corn- 
case  certain  specified  small  claims  against  the  companies  were  not 
settled  in  thirty  days.  The  statute  was  declared  not  to  be  based  on 
classification  but  on  "  arbitrary  selection."  The  reasoning  of  the 
case  on  the  points  of  the  text  is  not  bound  up  with  the  conclusion 
on  the  arbitrary  nature  of  the  selection  or  classification.  Three 
justices  dissented. 

4  Atchison,  etc.,  R.  Co.  v.  Matthews,  174  U.  S.  96. 

5  W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452. 

6  CarroU  r.  Greenwich  Ins.  Co.,  199  U.  S.  401. 

-  Fidelity  Mut.  L.  Ins.  Assoc,  v.  Mettler,  185  U.  S.  308,  325. 
8  See  Equitable  L.  Assur.  Soc.  v.  Clements,  140  U.  S.  226. 


352  DUE  PROCESS  OF  LAW 

Chapter    pany  not  doing  business  in  the  State,  is  an  uncon- 

'■ —  stitutional  interference  with  freedom  of  contract. 

The  court  said :  ^  ' '  When  we  speak  of  the  liberty  to 
contract  for  insurance  or  to  do  an  act  to  effectuate 
such  a  contract  already  existing,  we  refer  to  and 
have  in  mind  the  facts  of  this  case,  where  the  con- 
tract was  made  outside  the  State,  and  as  such  was  a 
valid  and  proper  contract.  The  act  done  within  the 
limits  of  the  State,  under  the  circumstances  of  this 
case  and  for  the  purpose  therein  mentioned,  we  hold 
a  proper  act,  —  one  which  the  defendants  were  at 
liberty  to  perform,  and  which  the  State  legislature 
had  no  right  to  prevent,  at  least  with  reference  to 
the  Federal  Constitution.  To  deprive  the  citizen 
of  such  a  right  as  herein  described  without  due 
process  of  law  is  illegal.  Such  a  statute  as  this  in 
question  is  not  due  process  of  law,  because  it  pro- 
hibits an  act  which,  under  the  Federal  Constitution, 
the  defendants  had  a  right  to  perform.  ...  In 
the  privilege  of  pursuing  an  ordinary  calling  or 
trade,  and  of  acquiring,  holding,  and  selling  prop- 
erty, must  be  embraced  the  right  to  make  all  proper 
contracts  in  relation  thereto;  and  although  it  may 
be  conceded  that  this  right  to  contract  in  relation  to 
persons  or  property  or  to  do  business  within  the 
jurisdiction  of  the  State  may  be  regulated,  and  some- 
times prohibited,  when  the  contracts  or  business  con- 
flict with  the  policy  of  the  State  as  contained  in  its 
statutes,  yet  the  power  does  not  and  can  not  extend 
to  prohibiting  a  citizen  from  making  contracts  of  the 
nature  involved  in  this  case  outside  of  the  limits  and 

»AlIgeyer  v.  Louisiana,  165  U.  S.  578. 


DUE  PROCESS  OF  LAW  353 


jurisdiction  of  the  State,  and  which  are  also  to  be    Chapter 
performed  outside  of  such  jurisdiction. '^  '■ — 


Regulation  in  the  Interest  of  Certain  Classes  —  to 
Prevent  Oppression. 

The  State  may  legislate  to  protect  certain  classes  ^^^"efj°f 
against  themselves,  so  to  say,  and  such  legislation  ^pp^^^^^'^^- 
has  been  held  valid  if  not  objectionable  for  other 
reasons,  as  for  unjust  discrimination,  although  it 
interfered  with  freedom  of  contract.  Usury  laws 
may  be  based  on  this  principle,  because  the  lender 
and  the  borrower  of  money  do  not  occupy  toward 
each  other  the  same  relation  of  equality  that  parties 
occupy  in  contracting  with  regard  to  the  loan  or 
sale  of  other  kinds  of  property,  and  the  borrower's 
necessities  deprive  him  of  freedom  of  contracting 
and  place  him  at  the  mercy  of  the  lender.^ 

Sailors  form  a  class  whose  freedom  and  right  to  Saiiors. 
contract  have  at  all  times  and  among  all  nations 
been  subject  to  peculiar  restraints.  Deserting 
sailors  may  be  summarily  arrested  and  punished 
criminally  for  what  in  ordinary  cases  of  employ- 
ment would  be  only  a  breach  of  contract.^  As  their 
liberty  is  curtailed  by  law  and  custom,  so  their 
rights  may  be  by  law  protected,  and  statutes  framed 
for  their  protection  have  been  declared  no  violation 
of  the  right  to  contract,  although  making  it  a  mis- 
demeanor for  the  employer  to  pay  wages  in  advance 
and  providing  that  advance  payment  shall  not  ab- 

iFrorer  v.  People,  141  111.  171. 

2  Robertson  v.  Baldwin,  165  U.  S.  275,  282. 


23 


354  DUE  PROCESS  OF  LAW 


Chapter    golvG   from  payment   after   the   wages   have   been 

1a.. 


"  Truck 
acts." 


earned.^ 

The  so-called  Truck  Acts  or  Store-order  Acts 
illustrate  the  same  principle.  As  was  said  by 
Byles,  J.,  in  an  English  case  under  the  Truck  Act 
(1  &  2  Wm.  IV,  c.  37):  ''The  Truck  Act,  when 
passed,  was  a  practical  deduction  from  a  principle, 
still  more  general,  pervading  more  or  less  all  systems 
of  law  founded  on  experience;  that  is  to  say,  that 
where  two  classes  of  persons  are  dealing  together, 
and  one  class  is,  generally  speaking,  weaker  than 
the  other,  and  liable  to  oppression  either  from 
natural  or  incidental  causes,  the  law  should,  as  far 
as  possible,  redress  the  inequality,  by  protecting  the 
weak  against  the  strong.  On  this  principle  rests 
the  protection  thrown  around  infants  and  persons 
of  unsound  or  weak  minds,  [and]  the  protection  af- 
forded even  by  the  common  law  to  the  victims  of 
fraud."*  A  statute  requiring,  under  certain  condi- 
tions, the  redemption  in  money  at  par  of  orders  pay- 
able in  goods  and  produce,  issued  to  laborers  by 
employers,  has  been  sustained  in  the  United  States 
Supreme  Court.  The  Tennessee  court,  in  a  passage 
approved  in  the  federal  court,  said:  "The  legis- 
lature evidently  deemed  the  laborer  at  some  disad- 
vantage under  existing  laws  and  customs  and  by  this 
act  undertook  to  ameliorate  his  condition  in  some 
measure  by  enabling  him  or  his  bona  fide  trans- 
feree, at  his  election  and  at  a  proper  time,  to  de- 
mand and  receive  his  unpaid  wages  in  money  rather 
than    in    something    less    valuable.     Its    tendency, 

3  Patterson  r.  The  Eudora.  100  U.  S.  169. 

♦  Archer  v.  James,  2  B.  &  S.  82,  110  E.  C.  L.  82. 


DUE  PROCESS  OF  LAW  355 


though  slight  it  may  be,  is  to  place  the  employer    csiapter 


and  employee  upon  equal  ground  in  the  matter  of 
wages,  and,  so  far  as  calculated  to  accomplish  that 
end,  it  deserves  commendation.  Being  general  in 
its  operation  and  enforceable  by  ordinary  suit,  and 
being  unimpeached  and  unimpeachable  upon  other 
constitutional  grounds,  the  act  is  entitled  to  full 
recognition  as  the  'law  of  the  land'  and  'due 
process  of  law'  as  to  the  matters  embraced."^ 

Acts  for  the  protection  of  employees  generally  or  desfgned 
of  employees  in  particular  pursuits  and  industries  lmff//es 
have,  on  the  other  hand,  frequently  been  held  by 
State  courts  an  unconstitutional  restraint  on  the 
right  to  make  contracts  and  do  business.  So,  with 
statutes  forbidding  contracts  of  employment  payable 
otherwise  than  in  money  to  be  made  by  corporations 
or  persons  engaged  in  manufacturing  or  mining ;  ^ 
a  statute  compelling  manufacturing,  mining,  and 
other  enumerated  corporations  to  pay  employees  at 
stated  intervals  and  forbidding  assignments  to  the 
employer  of  future  wages ; '''  forbidding  corporations 
or  persons  engaged  in  mining  or  manufacturing  to 
maintain  stores  for  the  purpose  of  furnishing 
their  employees  with  supplies,  clothing,  provisions, 
etc. ;  ^  forbidding  those  engaged  in  weaving  to  with- 
hold from  the  wages  of  or  to  fine  an  employee  be- 
cause of  imperfections  in  his  work ;  ^  requiring  coal 

5  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  afjlrming  103 
Tenn,  421. 

estate  v.  Loomis,  115  Mo.  307;  Godcharles  v.  Wigeman,  113  Pa. 
St.  431;  State  v.  Goodwill,  33  W.  Va.  179;  State  v.  Fire  Creek  Coal, 
etc.,  Co.,  33  W.  Va.  188. 

7  Braceville  Coal  Co.  v.  People,  147  111.  66. 

sFrorer  v.  People,  141  111.  171. 

•Com.  V.  Perry,  155  Mass.  117. 


356 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Purely  pri- 
vate voca- 
tion not 
subject  to 
regulatioo. 


miners  to  be  paid  by  the  weight  of  coal  mined  and 
providing  for  the  method  of  weighing.^  These 
cases  emphasize  the  sacredness  of  the  right  to  con- 
tract, but  ahnost  all  place  tlie  ruling  on  the  ground 
that  the  legislature  discriminates  arbitrarily  among 
industries.  When  this  feature  was  lacking,  similar 
statutes  have  been  sustained.^ 

A  purely  private  vocation  or  calling  which  has 
no  connection  with  the  public  health  or  well-being, 
which  is  lawful  and  is  not  attended  with  any  pecu- 
liar dangers,  can  not  be  subjected  to  special  regula- 
tion impairing  the  freedom  of  contract,  even 
though  the  legislation  is  ostensibly  for  the  protec- 
tion of  public  health.^  Thus  a  law  restricting  the 
employment  of  bakers  to  sixty  hours  a  week  has 
been  held  by  the  United  States  Supreme  Court  an 
arbitrary  interference  with  freedom  of  contract,^ 
and  statutes  regulating  the  trade  of  horseshoeing 
have  been  pronounced  in  the  State  courts  beyond  the 
legislative  power  and  an  infringement  on  personal 
liberty  and  freedom  of  contract.^ 


iMillett  V.  People,  117  111.  294;  Ramsey  v.  People,  142  111. 
380. 

2  Hancock  v.  Yaden,  121  Ind.  366;  State  v.  Peel  Splint  Coal  Co.. 
3(i  W.  Va.  802.  See  also  Avent-Beattyville  Coal  Co.  v.  Com.,  96 
Ky.  218. 

Such  legislation  directed  against  corporations  only  has  been 
sustained,  when  the  power  to  amend  their  charters  was  reserved  by 
the  State.  Leep  v.  St.  Louis,  etc.,  R.  Co.,  58  Ark.  407;  Shaffer  v. 
Union  Min.  Co.,  55  Md.  74;  State  v.  Brown,  etc.,  Mfg.  Co.,  18 
R.  I.  16. 

3  Lochner  V.  New  York,  108  U.  S.  45 ;  Matter  of  .Jacobs,  98  N.  Y. 
98.     And  see  supra,  the  cases  referring  to  oleomargarine,  p.  349. 

4  Lochner  v.  New  York,  198  U.  S.  45. 

8  Bessette  v.  People,  193  111.  334;  People  v.  Beattie,  96  N.  Y.  App. 
Div.  383;  Matter  of  Aubrey,  36  Wash.  308. 


Chapter 
IX. 


DUE  PROCESS  OF  LAW  357 

Regulation  in  the  Interest  of  Economic  Prosperity 
and  General  Welfare. 

Freedom  of  contract  may  be  regulated  in  the  exer-  gSon. 
cise  of  the  legislative  power  in  the  interests  of  the 
general  welfare  of  society.  Sunday  laws  have  been 
sustained  as  not  an  arbitrary  interference  with  busi- 
ness or  liberty.  Public  health  and  well-being  de- 
mand periodical  cessation  from  labor,  and  it  rests 
with  the  legislature  to  prescribe  the  frequency  of 
rest  and  the  day  to  be  observed.^ 

Monopolies  and  combinations  tending  to  control  ^onopo- 
prices  and  suppress  competition  are  almost  uni-  cpmbiSt 
versally  believed  to  be  detrimental  to  society,  and 
laws  passed  to  suppress  this  evil,  although  inter- 
fering to  some  extent  with  freedom  to  contract,  are 
valid.  In  a  recent  case  wherein  a  State  anti-trust 
law  was  attacked  as  interfering  with  liberty  to  con- 
tract, the  court  said:  ''There  are  some  things 
which  counsel  easily  demonstrate.  They  easily 
demonstrate  that  some  combination  of  'capital,  skill 
or  acts'  is  necessary  to  any  business  development, 
and  that  the  result  must  inevitably  be  a  cessation 
of  competition.  But  this  does  not  prove  that  all 
combinations  are  inviolable  or  that  no  restriction 
upon  competition  can  be  forbidden.  ...  It  is 
certainly  the  conception  of  a  large  body  of  public 
opinion  that  the  control  of  prices  through  combina- 
tions tends  to  restraint  of  trade  and  to  monopoly, 
and  is  evil.  The  foundations  of  the  belief,  we  are 
not  called  upon  to  discuss,  nor  does  our  purpose  re- 

eHennington  v.  Georgia,  163  U.  S.  299;  Petit  v.  Minnesota,  177 
U.  S.  164. 


358  DUE  PROCESS  OF  LAW 


Chapter    quire  us  to  distinguish  between  the  kinds  of  com- 

'■ —  binations  or  the  degrees  of  monopoly.    It  is  enough 

to  say  that  the  idea  of  monopoly  is  not  now  con- 
fined to  a  grant  of  privileges.  It  is  understood  to 
include  a  'condition  produced  by  the  acts  of  mere 
individuals.  ^  Its  dominant  thought  now  is,  to  quote 
another,  'the  notion  of  exclusiveness  or  unity;'  in 
other  words,  the  suppression  of  competition  by  the 
unification  of  interest  or  management,  or  it  may  be 
through  agreement  and  concert  of  action.  And  the 
purpose  is  so  definitely  the  control  of  prices  that 
monopoly  has  been  defined  to  be  'unified  tactics 
with  regard  to  prices.'  It  is  the  power  to  control 
prices  which  makes  the  inducement  of  combinations 
and  their  profit.  It  is  such  power  that  makes  it  the 
concern  of  the  law  to  prohibit  or  limit  them.  And 
this  concern  and  the  policy  based  upon  it  has  not 
only  expression  in  the  Texas  statutes;  it  has  ex- 
pression in  the  statutes  of  other  States  and  in  a 
well-known  national  enactment.  According  to  them 
competition,  not  combination,  should  be  the  law  of 
trade.  If  there  is  evil  in  this  it  is  accepted  as  less 
than  that  which  may  result  from  the  unification 
of  interest,  and  the  power  such  unification  gives. 
And  that  legislatures  may  so  ordain  this  court  has 
decided."  "^ 

In  another  case,  even  more  recent,  the  court  de- 

7  National  Cotton  Oil  Co.  v.  Texas,  197  U.  S.  115.  See  also 
Aikens  v.  Wisconsin,  19.5  U.  S.  194 ;  Smiley  v.  Kansas,  196  U.  S.  447. 

As  sustaining  such  legislation  by  Congress,  see  Northern  Securi- 
ties Co.  V.  U.  S.,  193  U.  S.  197;  Swift  v.  U.  S.,  196  U.  S.  375,  and 
the  cases  cited  in  these  opinions. 

The  liberty  to  contract  does  not  include  the  liberty  to  make  con- 
tracts which  interfere  with  interstate  commerce.  Addystone  Pipe, 
etc.,  Co.  V.  U.  S.,  175  U.  S.  211,  229. 


DUE  PROCESS  OF  LAW  359 

clared:    "Many  State  laws  which  limit  the  freedom    Ch^ter 

of  contract  have  been  sustained  by  this  court,  and  

therefore  an  objection  to  this  law  on  the  general 
ground  that  it  limits  that  freedom  can  not  be  up- 
held. There  is  no  greater  sanctity  in  the  right  to 
combine  than  in  the  right  to  make  other  contracts. 
Indeed,  Mr.  Dicey,  in  his  recent  work  on  Law  and 
Public  Opinion  in  England  during  the  Nineteenth 
Century,  indicates  that  it  is  out  of  the  very  right  to 
make  what  contracts  one  chooses,  so  strenuously 
advocated  by  Bentham,  that  combinations  have 
arisen  which  restrict  the  very  freedom  that  Bentham 
sought  to  attain,  and  which  even  might  menace  the 
authority  of  the  State.  .  .  .  Again,  if  an  evil  is 
specially  experienced  in  a  particular  branch  of 
business,  the  Constitution  embodies  no  prohibition 
of  laws  confined  to  the  evil,  or  doctrinaire  require- 
ment that  they  should  be  couched  in  all-embracing 
terms.  It  does  not  forbid  the  cautious  advance, 
step  by  step,  and  the  distrust  of  generalities,  which 
sometimes  have  been  the  weakness,  but  often  the 
strength,  of  English  legislation."  ^ 

Legislation  may  create,  upon  equitable  principles,  K^^^"' 
liens  in  favor  of  those  who  work  on  property  with- 
out infringing  on  the  due  process  clause  of  the  Con- 
stitution. Mechanics'  lien  laws  rest  on  the  natural 
equity  that  the  payment  for  benefits  accruing  to 
property  should  be  made  a  charge  on  that  property.^ 
Provisions  in  such  statutes  extending  the  lien  to 
sub-contractors,  material-men,  and  laborers,  who 
have  no  direct  contract  with  the  property  owner, 

8  Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401. 

« Provident  Sav.  Inst.  v.  Jersey  City,  113  U.  S.  506. 


360  DUE  PROCESS  OF  LAW 

Chapter    havG    been  the  most    frequent   objects    of  attack. 

^ Where  the  sub-contractor's   or  laborer's  lien  was 

enforceable  against  the  property  directly,  and  not 
worked  out  through,  and  as  subordinate  to,  the 
claim  of  the  principal  contractor,  the  provision  has 
occasionally  been  held  not  to  be  due  process  of  law, 
on  the  ground  that  it  was  an  arbitrary  interfer- 
ence with  freedom  of  contract,^  or  that  it  deprived 
the  owner  of  his  property  without  his  consent,  and 
without  allowing  him  a  hearing.^  But  sub-con- 
tractors' liens  have  generally  been  sustained  against 
such  objections;  at  least,  when  the  rights  of  the 
property  owner  are  guarded  by  provisions  confining 
his  liability,  in  the  absence  of  fraud,  to  the  amount 
due  the  original  contractor,  and  the  statute  defines 
his  rights  so  that  he  may  protect  himself  from  the 
danger  of  double  pajnnent.^ 

dSni"^'  ^^  statute  of  Ohio  giving  sub-contractors,  mate- 

upheiT  rialmen,  etc.,  liens,  upon  filing  notes  within  four 
months  after  the  work  done  or  materials  furnished, 
for  the  actual  value  thereof,  which,  however,  except 
in  case  of  fraud  can  not  in  the  aggregate  exceed  the 
original  contract  price,  was  held  valid  by  the  United 
States  Supreme  Court,  against  the  objection  that  it 
was  an  arbitrary  interference  with  freedom  of  con- 

1  Palmer  r.  Tinjrle.  55  Ohio  St.  423,  disapproved  in  Great  South- 
ern Fire  Proof  Hotel  Co.  V.  Jones,  193  U.  S.  532,  30  C.  C.  A.  108, 
8G  Fed.  Rep.  371. 

2  Meyer  r.  Berlandi,  39  Minn.  438 ;  John  Spry  Lumber  Co  v.  Sault 
Sav.  Bank,  etc.,  Co.,  77  Mich.  199. 

3  See,  among  numerous  authorities,  Jones  v.  Great  Southern  Fire 
Proof  Hotel  Co.,  58  U.  S.  App.  397,  86  Fed.  Rep.  371,  collecting  and 
reviewing  many  cases;  Smith  v.  Newbaur,  144  Ind.  95;  Smalley  v. 
Gearing,  121  Mich.  190;  Henny,  etc.,  Co.  v.  Evans,  97  Mo.  47;  Title 
Guarantee,  etc.,  Co,  v.  Wrenn,  35  Oregon  62. 


DUE  PROCESS  OF  LAW  361 


tract.    The  court  adopted  the  conclusions  of  the  Cir-    Chapter 


cuit  Court  of  Appeals  on  this  point,  which  were  thus 
summed  up:  "That  the  restraints  put  upon  the 
owner  by  the  provisions  in  favor  of  sub-contractors 
and  those  who  furnished  materials  to  be  used  by  the 
contractor  in  execution  of  his  contract  with  the 
owner  were  neither  arbitrary  nor  oppressive;  that 
such  provisions  were  no  more  onerous  than  required 
by  the  necessity  of  protecting  those  who  actually 
do  the  work  or  furnish  the  material  by  which  the 
owner  is  benefited;  and  that,  as  the  legislation  in 
question  was  sanctioned  by  the  dictates  of  natural 
justice,  and,  as  must  be  conclusively  presumed,  was 
known  to  the  owner  when  he  contracted  for  the 
building  of  his  house,  its  requirements  could  only 
be  avoided  by  pointing  out  some  specific  part  of  the 
organic  law  which  has  been  violated  by  its  enact- 
ment."^ 

A  statute  forbidding  the  assignment  of  certain  dlfms"'"^ 
claims  by  citizens  against  citizens  for  the  purpose  of  citizens. 
suit  in  another  State  has  been  upheld  in  a  State 
court.^ 

All  the  cases  noticed  above,  and  their  number  p/pubHc^ 
might  be  increased  indefinitely  from  the  State  re-  Ics^Jyot 
ports,  involve  a  conflict  of  interest,  as  viewed  by 
the  legislative  mind,  between  the  welfare  of  the 
State  as  a  whole  and  the  untrammeled  liberty  of 
certain  classes  of  the  community.  The  question  of 
the  policy  of  the  State  in  dealing  with  such  conflicts 
is  an  exceedingly  difficult  one  and  requires  the  ap- 

4  Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  193  U.  S.  532, 
549,  approving  58  U.  S.  App.  397,  86  Fed.  Eep.  371. 

5  Sweeny  v.  Hunter,  145  Pa.  St.  363.     See  also  supra,  p.  105. 


caution. 


362  DUE  PROCESS  OF  LAW 

Chapter  pHcation  of  broad  principles  of  public  policy  and 
— — —  economic  theory  to  practical  legislation.  These 
principles  are  not  yet  so  firmly  settled  that  our 
courts  may  mark  exactly  the  point  at  which  State 
interference  should  in  all  cases  cease  and  the  free- 
dom of  the  individual  have  unrestricted  sway.  The 
rapid  development  of  modern  industries  bringing 
into  play  new  forms  of  power  from  wealth  and 
combination,  and  the  increasing  complexity  of  civili- 
zation have  already  rendered  necessary  restrictive 
legislation  which  would  have  seemed  intolerable  to  a 
generation  nurtured  in  the  legislative  theories  of 
Bentham.  Enlightened  public  opinion,  as  reflected 
by  our  legislatures  and  courts,  has  receded  from  the 
strict  doctrine  of  laissez  faire,  and  we  can  not  say 
that  a  further  abandonment  of  that  position  may  not 
be  advisable.  It  is  of  the  utmost  importance,  then, 
not  to  give  to  the  broad  and  simple  phrases  em- 
ployed by  the  Constitution  in  the  enumeration  of 
fundamental  rights,  so  rigid  an  interpretation  as 
will  hamper  the  legislature  in  fashioning  remedies 
for  apparent  evils  and  abuses.  Or  in  the  anxiety 
to  preserve  individual  liberty  in  theory,  the  courts 
may  sanction  a  state  of  practical  oppression.  In 
discussing  the  attitude  of  the  United  States  Supreme 
Court  toward  State  legislation,  that  court  has  said : 
''While  the  courts  must  exercise  a  judgment  of 
their  own,  it  by  no  means  is  true  that  every  law  is 
void  which  may  seem  to  the  judges  who  pass  upon 
it  excessive,  unsuited  to  its  ostensible  end,  or  based 
upon  conceptions  of  morality  with  which  they  dis- 
agree. Considerable  latitude  must  be  allowed  for 
differences  of  view,  as  well  as  for  possible  peculiar 


DUE  PROCESS  OF  LAW  363 

conditions  which  this  court  can  know  but  imper-    Chapter 

fectly,  if  at  all.     Otherwise,  a  constitution,  instead  

of  embodying  only  relatively  fundamental  rules  of 
right,  as  generally  understood  by  all  English-speak- 
ing communities,  would  become  the  partisan  of  a 
particular  set  of  ethical  or  economical  opinions, 
which  by  no  means  are  held  semper  uhique  et  ah 
omnibus.''^ 

Exaction  of  Licenses. 

Police  regulation  may  take  the  form  of  licenses  Jf^^^f^^Ts 
exacted  as  a  condition  precedent  to  entering  into  ohken"es. 
any  business.  When  the  issuance  of  the  license  is 
dependent  upon  the  payment  of  a  license  fee,  the 
transaction  approaches  very  close  to  an  exercise  of 
the  power  of  taxation  by  the  imposition  of  occupa- 
tion taxes.  A  license  fee  may  partake  of  both  char- 
acters, so  that  its  validity  does  not  depend  alone  on 
the  adjustment  between  the  amount  of  the  exaction 
and  the  expense  of,  or  necessity  for,  police  regula- 
tion. A  municipal  license  tax  of  one  hundred  dol- 
lars upon  the  business  of  selling  cigarettes  has  been 
held  both  within  the  police  and  the  taxing  power. 
**  So  long  as  the  State  law  authorizes  both  reg-ulation 
and  taxation  it  is  enough,  and  the  enforcement  of 
the  ordinance  violates  no  provision  of  the  Federal 
Constitution."'^ 

The  distinction  between  a  police  license  and  an  Distin- 

puished 

occupation  tax  has  been  thus  stated  in  a  case  where-  J'a'?"o„°^ax! 
in  an  exaction  was   held  to  belong  to   the  latter 
class:     "It  is  an  occupation  tax,  for  which  the  li- 

6  Otis  V.  Parker,  187  U.  S.  608. 

TGundlin?  r.  ChicniTo.  177  U.  S.  183.     See  also  Hodge  v.  Musca- 
tine County,  196  U.  S.  276. 


364  DUE  PROCESS  OF  LAW 

Chapter    cense  is  merely  a  receipt,  and  not  an  authority,  except 

in  that  sense,  because  it  is  laid  and  collected  as 

revenue,  and  not  merely  as  incident  to  the  general 
police  power  of  the  State ;  which,  under  certain  cir- 
cumstances and  conditions,  regulates  certain  em- 
ployments with  a  view  to  the  public  health,  comfort 
and  convenience.  In  the  latter  class  of  cases,  the 
exactions  may  be  either  fees  or  fines,  as  they  are 
proportioned  to  the  expense  of  regulation,  or  laid 
as  a  burden  upon  and  a  discouragement  to  the 
business,  and  not  taxes  which  are  levied  for  the 
purpose  of  raising  public  revenue  by  means  of  a 
contribution  either  from  the  person  or  the  prop- 
erty or  the  occupation  of  all  citizens  in  like  cir- 
cumstances." ^ 
wihefor  The  right  acquired  by  a  license  to  pursue  any 
regulation,  vocatiou  is  always  subject  to  the  exercise  of  the 
police  power.  Thus  a  license  to  follow  the  occupa- 
tion of  a  druggist  does  not  give  the  licensee  a  right 
to  use  spirituous  liquors  in  the  compounding  of  his 
drugs  on  the  prescriptions  of  physicians,  if  the 
State  requires,  in  regulating  the  sale  of  such  liquors, 
that  the  druggist  must  have  another  license  to  en- 
gage in  the  sale  from  the  board  of  county  commis- 
sioners.^ 
focafboard^  Authorlty  to  grant  licenses  to  vend  commodities, 
reasonabfe  whose  purity  is  a  proper  subject  of  police  regula- 
tion, may  be  vested  in  a  local  board  acting  in  the 
honest  exercise  of  a  reasonable  discretion,  and  when 
it  is  so  vested  one  who  is  punished  for  failure  to 
secure  a  license  can  not  complain  of  a  deprivation 

sEoyall  r.  Virginia,  116  U.  S.  572. 
»Gray  v.  Connecticut,  159  U.  S.  77. 


DUE  PROCESS  OF  LAW  365 


of  due  process  of  law  within  the  Fourteenth  Amend-    chapter 


Issuing 


ment.^ 

Police  regulations  may  frequently  be  made  uni-  pirmklfor 
versal,  with  the  power  committed  to  some  board  or  acts. 
officer  to  grant  a  dispensation  from  the  observance 
of  the  regulation,  or  a  license  to  do  the  act  generally 
prohibited.  The  denial  of  the  license  in  a  par- 
ticular case  is  not  a  deprivation  of  due  process  of 
law  under  the  Federal  Constitution,  even  though 
the  power  is  vested  in  a  single  individual."  Some 
State  courts  have,  however,  taken  a  contrary  view 
and  held  it  to  be  contrary  to  the  spirit  of  American 
institutions  to  vest  such  dispensing  power  in  the 
hands  of  a  single  individual.^ 

COMMITTING    LEGISLATIVE    OR    JUDICIAL    FUNCTIONS    TO 
EXECUTIVE. 

The  legislature  may  embody  in  an  enactment  a  ?cHonof 
complete  rule  or  standard  of  conduct  with  regard 
to  the  matter  dealt  with  which  leaves  open  only  the 
judicial  question  of  the  application  of  the  law  to  the 
circumstances  of  the  individual  case.     Thus  in  re- 

iNew  York  v.  Van  De  Carr,  199  U.  S.  552,  affirming  175  N". 
Y.  440. 

2  Com.  V.  Davis,  162  Mass.  510,  affirmed  167  U.  S.  43;  Wilson  v. 
Eureka  City,  173  U.  S.  32;  Fischer  v.  St.  Louis,  194  U.  S.  361, 
affirming  167  Mo.  654;  Matter  of  Flaherty,  105  Cal.  558.  And  see 
LouisWlle,  etc.,  R.  Co.  v.  Kentucky,  183  U.  S.  503. 

3  Cases  to  this  effect  from  Illinois,  Chicago  T.  Trotter.  136  111. 
430;  Kansas,  Anderson  v.  Wellington,  40  Kan.  173;  Maryland,  Bal- 
timore V.  Radecke,  49  Md.  217;  Michigan,  Matter  of  Frazee,  63 
Mich.  396;  Rhode  Island,  State  v.  Fiske,  9  R.  I.  94;  South  Dakota, 
Sioux  Falls  r.  Kirby,  6  S.  Dak.  62,  are  cited  in  Wilson  v.  Eureka 
City,  173  U.  S.  32,  and  Fischer  r.  St.  Louis,  194  U.  S.  361. 

In  California,  Ex  p.  Sing  Lee,  96  Cal.  354,  and  Missouri,  St. 
Louis  r.  Russell,  116  Mo.  248,  it  is  held  that  the  power  to  grant  dis- 
pensations cannot  be  vested  in  adjoining  lot  owners. 


legislature. 


cials 


366  DUE  PROCESS  OF  LAW 

Chapter  gard  to  property,  the  legislature  may  prospectively 
'""  — —  proliibit  particular  uses  thereof,  or  enact  that  its 
existence  under  certain  conditions  is  a  menace  to 
the  rights  of  society.  In  other  words,  the  existence 
or  unlawful  use  of  designated  classes  of  property 
may  be  declared  a  nuisance.  To  the  establishment 
of  such  a  rule  neither  notice  nor  an  opportunity  to 
be  heard  on  the  part  of  the  persons  whose  property 
is  affected  is  essential.  A  direct  exercise  by  the 
legislature  of  the  police  power  is  in  accordance  with 
immemorial  governmental  usage  and  constitutes  in 
itself  due  process  of  law.* 
Slt"clf'geti-  ^^t  the  subject  matter  may  be  such  that  only  a 
fmruifed  general  scheme  of  policy  can  with  advantage  be  laid 
trativ'^'offi-  down  by  the  legislature,  and  the  working  out  in 
detail  of  the  policy  indicated  may  be  left  to  the 
discretion  of  administrative  or  executive  officials. 
Sometimes  the  discretionary  duties  so  intrusted  to 
administrative  officials  are  under  the  terms  of  the 
statute  to  be  performed  without  granting  a  hearing 
to  those  whose  interests  are  affected.  In  such  cases 
attacks  have  been  made  on  the  laws  as  unconstitu- 
tional delegations  of  power  to  the  executive.  Where 
the  statute  has  indicated  with  all  practical  definite- 
ness  a  general  scheme  of  policy  and  a  standard  to 
be  followed,  leaving  for  the  executive  only  details 
which  it  could  not  in  the  nature  of  things  decide,  such 
legislation  has  uniformly  been  upheld  by  the  Federal 
Supreme  Court. 

In  upholding  the  validity  of  tolls  fixed  for  the  use 

4  Chicago,  etc.,  R.  Co.  v.  Nebraska,  170  U.  S.  57;  Mugler  v.  Kan- 
sas, 123  U.  S.  62.3,  670,  672;  State  v.  Griffin.  60  N.  H.  1 ;  Newark.  «tc., 
Horse  Car  R.  Co.  v.  Hunt,  50  N.  J.  L.  308,  312;  Health  Dept,  v. 
Trinity  Church,  145  N.  Y.  32. 


DUE  PROCESS  OF  LAW  3G7 


of  an  improved  stream  by  a  board  appointed  by  the    Chapter 
State  for  that  purpose,  the  court  said:    ''The  legis- 


Fixing 


lature,  actinar  upon  information  received,  may  pre-  toiis;  in- 


specting 


scribe  at  once  the  tolls  to  be  charged;  but,  ordina-  •"^"^^• 
rily,  it  leaves  their  amount  to  be  fixed  by  officers  or 
boards  appointed  for  that  purpose,  who  may  pre- 
viously inspect  the  works,  and  ascertain  the  prob- 
able amount  of  business  which  will  be  transacted  by 
means  of  them,  and  thus  be  more  likely  to  adjust 
wisely  the  rates  of  toll  in  conformity  with  that  busi- 
ness. This  subject,  like  a  multitude  of  other  mat- 
ters, can  be  better  regulated  by  them  than  by  the 
legislature.  In  the  administration  of  government, 
matters  of  detail  are  usually  placed  under  the  direc- 
tion of  officials.  The  execution  of  general  direc- 
tions of  the  law  is  left,  in  a  great  degree,  to  their 
judgment  and  fidelity.  Any  other  course  would  be 
attended  with  infinite  embarrassment.  ...  No 
notice  can  be  given  to  parties  who  may  have  oc- 
casion to  use  the  stream,  to  attend  before  the  board 
and  present  their  views  upon  the  tolls  to  be  charged. 
Such  parties  can  not  be  known  in  advance.  The 
occasion  for  using  the  improved  stream  may  arise 
at  any  time  in  the  year;  perhaps  after  the  tolls  have 
been  established.  The  whole  subject  is  one  of  ad- 
ministrative regulation,  in  which  a  certain  amount 
of  discretionary  authority  is  necessarily  confided  to 
officers  intrusted  with  its  execution.  Should  there 
be  any  gross  injustice  in  the  rate  of  tolls  fixed,  it 
would  not,  in  our  system  of  government,  remain 
long  uncorrected."^  In  a  late  case  it  was  said: 
''While  it  is  undoubtedly  true  that  legislative  power 

B  Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288. 


368  DUE  PROCESS  OF  LAW 


Chapter    can  not  be  delegated  to  the  courts  or  to  the  execu- 

— —  tive,  there  are  some  exceptions  to  the  rule.     .     .     . 

In  enacting  a  law  with  regard  to  the  inspection  of 
mines,  we  see  no  objection,  in  case  the  legislature 
find  it  impracticable  to  classify  the  mines  for  the 
purposes  of  inspection,  to  commit  that  power  to  a 
body  of  experts  who  are  not  only  experienced  in  the 
operation  of  mines,  but  are  acquainted  with  the  de- 
tails necessary  to  be  known  to  make  a  reasonable 
classification,  although  it  may  affect  the  amount  of 
fees  to  be  paid  by  the  mine  owners."  ^  In  this  case 
by  the  statute  the  inspectors  might  regulate  the 
charge  for  inspection,  which  might  vary  from  six 
dollars  to  ten  dollars,  according  to  the  class  of  the 
mine  as  determined  by  them,  and  they  might  deter- 
mine the  number  of  inspections  ''necessary  and 
proper  "  during  the  year,  a  minimum  of  four  being 
required.  It  was  contended  that  the  discretion  thus 
delegated  to  the  inspectors  violated  the  due  process 
clause  of  the  Constitution,  but  the  court  held  other- 
wise. While  admitting  that  there  might  be  much 
force  in  the  suggestion,  if  the  discretion  was  un- 
limited and  if  the  fees  were  retained  by  the  inspec- 
tor, yet,  as  he  received  a  fixed  salary  and  paid  over 
the  fees  to  the  State,  and  as  actually  less  than  the 
four  required  inspections  had  been  made  in  the 
average  on  the  defendant's  thirty-one  mines,  and 
there  was  no  complaint  of  an  abuse  of  the  discretion, 
the  statute  was  upheld. 
Further  Classcs  of  cascs  whcrcin  the  legislative  depart- 

illustra-  ,   °  . 

tions.         ment  has  committed  to  the  executive  the  determina- 
tion of  questions  of  fact,  involving  to  some  extent 

e  Consolidated  Coal  Co.  v.  Illinois,  185  U.  S.  203. 


DUE  PROCESS  OF  LAW  36'J 


judicial  powers,  and  has  even  made  the  executive    chapter 


determination  final,  when  within  the  authority  con- 
ferred and  free  from  fraud  or  abuse,  are  found  in 
the  findings  of  the  land  department  upon  questions 
of  fact ;  "^  and  in  the  decision  by  heads  of  depart- 
ments of  matters  committed  to  them  requiring  the 
exercise  of  judgment  and  discretion,  whether  the 
decision  involves  questions  of  law  or  fact.^. 

Thus  the  rulings  of  the  postmaster  general  as  to  ^1%^. 
the    mailable    character  of  matter  offered    to    the  fuUnSon 
mails  ®  and  the  right  of  the  person  addressed  to  re-  of  flct"."^ 
ceive  mail  ^  do  not  work  a  denial  of  due  process  of 
law,  since  if  he  exceeds  his  authority  his  action  is 
reviewable  in  the  courts. 

An  Act  of  Congress  expressed  the  purpose  to  ex-  J" S'°" 
elude  from  the  country  the  lowest  grades  of  tea,  and 
left  to  the  secretary  of  the  treasury  and  a  board  of 
tea  experts  the  duty  of  determining  in  detail  uni- 
form standards  of  teas  with  regard  to  purity, 
quality,  and  fitness  for  consumption.  The  standards 
so  established  were  held  to  be  legal  and  their  de- 
termination not  to  involve  a  delegation  of  legislative 
power.  The  court  said:  ''Congress  legislated  on 
the  subject  as  far  as  was  reasonably  practicable, 
and  from  the  necessities  of  the  case  was  compelled 
to  leave  to  executive  officials  the  duty  of  bringing 
about  the  result  pointed  out  by  the  statute.     To 

TBurfenning  r.  Chicago,  etc.,  R.  Co.,  163  U.  S.  .321,  323; 
Gardner  r.  Bonestell,  180  U.  S.  362;  Bates,  etc.,  Co.  V.  Payne,  194 
U.  S.  106,  108. 

8  Decatur  V.  Paulding,  14  Pet.  (U.  S.)  497;  U.  S.  r.  Hitchcock, 
190  U.  S.  324;  Bates,  etc.,  Co.  v.  Payne,  194  U.  S.  106,  108,  109, 

9  Bates,  etc.,  Co.  V.  Payne,  194  U.  S.  106. 

1  Public  Clearing  House  v,  Coyne,  194  U.  S.  497. 
24 


370 


DUE  PROCESS  OF  LAW 


Kentucky- 
long  and 
short  haul 
enactment. 


Chapter  deny  the  power  of  Congress  to  delegate  such  a  duty 
— — —  would  in  effect  amount  but  to  declaring  that  the 
plenary  power  vested  in  Congress  to  regulate  foreign 
commerce  could  not  be  efficaciously  exerted. ' '  ^ 

The  ruling  of  a  State  railroad  commission  made 
in  accordance  with  law  on  the  application  of  a  car- 
rier, denying  to  the  carrier  an  exemption  from  the 
provisions  of  a  ''long  and  short  haul"  enactment, 
after  an  investigation  of  all  the  facts,  may  a  fortiori 
be  made  final  as  to  questions  of  fact.  The  commis- 
sion under  the  State  constitution  was  a  regular  con- 
stitutional tribunal  or  court  empowered  to  investi- 
gate judicial  questions  submitted  within  its  jurisdic- 
tion, and  "finality  is  a  characteristic  of  the  judg- 
ments of  all  tribunals,  unless  the  laws  provide  for  a 
review. '  ^ 

It  has  been  held  by  a  Federal  Circuit  Court  that 
a  statute  committing  both  legislative  and  judicial 
duties  to  the  same  body  was  unconstitutional  as  de- 
nying to  the  persons  subject  to  its  rulings  due  proc- 
ess of  law  under  the  Fourteenth  Amendment.^  But 
it  seems  difficult  to  reconcile  this  holding  with  later 
decisions  of  the  United  States  Supreme  Court.^* 

NOTICE  AND  HEARING. 

Wlien  a  regular  rule  or  standard  for  the  regula- 
tion of  conduct  or  property  has  been  framed,  the 
application  of  the  regulation  to  the  circumstances 
of  the  individual  involves  a  judicial  question  requir- 
ing the  presence  of  that  notice  and  hearing  which  in 

2  Buttfield  r.  Stranahan,  192  U.  S.  470,  406. 
2*  Louisville,  -etc.,  R.  Co.  v.  Kentucky,  IS.'?  U.  S.  .')03,  515. 

3  Western  Union  Tel.  Co.  v.  Myatt,  98  Fed.  Rep.  335,  and  see 
supra,  p.  164. 

3*  See  the  cases  just  discussed  and  supra,  p.  7L 


Application 
of  legisla- 
tive rule 
generally 
requires 
hearing. 


DUE  PROCESS  OF  LAW  371 

such  circumstances  is  necessary  to  constitute  due    Chapter 
process  of  law. 

Due  Process  Does  Not  Require  Jury,  and  May  Be 

Executive. 

Due  process  in  this  connection  under  the  Federal  dilpelfsed 

^  with  of 

Constitution  does  not  require  a  jury  trial.  The  necessity. 
jurisdiction  of  courts  of  equity  to  abate  nuisances 
is  of  ancient  origin  and  such  an  abatement  satisfies 
the  constitutional  requirement.*  Nor  under  that 
constitution  is  a  judicial  proceeding  necessary,^ 
however  essential  it  may  be  under  State  constitu- 
tions. There  are  cases  in  the  Federal  Supreme 
Court  which  hold  that  hearing  and  notice  is  not  al- 
ways requisite  even  here.  This  is  obviously  the 
case  where  in  view  of  the  subject  dealt  with,  the 
general  rule  framed  must  be  of  so  uncertain  a  kind 
as  to  leave  much  to  the  discretion  of  administrative 
officers  in  applying  it  to  particular  cases.  Such  was 
the  case  stated  above  where  inspectors  were  to  in- 
spect mines  as  often  as  was  "necessary  and 
proper,"  a  minimum  number  of  inspections  being 
provided  for.^  But  the  same  court  has  gone  fur- 
ther and  sanctioned,  in  the  case  upholding  the  law 

4  Mugler  V.  Kansas,  123  U.  S.  672,  673, 

Expressions  of  some  State  courts  indicate  that  under  the  State 
constitution  a  jury  trial  is  essential  to  due  process.  Dunn  V.  Bur- 
leigh, 62  Me.  24;  Sterling  v.  Littlefield,  97  Me.  479. 

5  Simon  v.  Craft,  182  U.  S.  436 ;  Reetz  V.  Michigan,  188  U.  S. 
505,  507.     See  also  snpra,  pp.  80,  163. 

Due  process  is  present  when  a  statute,  valid  in  substance,  is  ad- 
ministered by  a  competent  tribunal  in  the  established  method,  the 
defendant  being  present.  New  York,  etc.,  R.  Co.  V.  New  York,  165 
U.  S.  628. 

6  See  supra,  p.  368. 


372 


DUE  PROCESS  OF  LAW 


Chapter 
IX. 


Necessity 
may  modi- 
fy require- 
Ment  of 
notice  and 
hearing. 


for  tea  inspection,  an  inspection  admittedly  without 
any  provision  for  a  iiearing,  whereby  tea  was  graded 
below  the  standard  required  for  entrance,  and,  as  a 
result,  was  ordered  deported.  The  proceedings 
were  held  to  work  no  denial  of  due  process  of  law. 
The  court  said:  ''The  provisions  in  respect  to 
.  .  .  the  examination  of  samples  by  government 
experts  was  for  the  purpose  of  determining  whether 
the  conditions  existed  which  conferred  the  right  to 
import,  and  they,  therefore,  in  no  just  sense  con- 
cerned a  taking  of  property.  This  latter  question 
was  intended  by  Congress  to  be  finally  settled,  not  by 
a  judicial  proceeding,  but  by  the  action  of  the  agents 
of  the  government,  upon  whom  power  on  the  subject 
was  conferred. ' '  "^ 

Necessity,  not  to  dispense  with  altogether,  but  to 
postpone  hearing,  may  exist  in  the  case  of  the  de- 

TButtfield  V.  Stranahan,  192  U.  S.  470,  497.  The  opinion  on 
this  point  is  not  entirely  clear.  If  it  is  meant  to  hold  that  Con- 
gress in  its  plenary  power  over  imports  may,  on  the  ground  that 
no  rights  of  property  attach  until  the  goods  are  imported,  exclude 
them  without  a  hearing,  it  goes  further  than  the  two  most  analogous 
lines  of  cases.  These  are  those  which  concern  the  exclusion  of 
aliens  and  the  appraisal  of  the  value  of  imports.  But  each  of  these 
classes  of  eases  proceeds  ostensibly  on  the  theory  that  provision  is 
made  for  a  reasonable  hearing  in  accordance  with  the  equitable  prin- 
ciple of  due  process  of  law.     See  supra,  pp.  190,  242. 

As  the  determination  of  the  quality  of  the  teas  is  the  point 
upon  which  hearing  was  claimed,  and  the  act  carefully  guards  the 
interests  of  the  importers  in  the  selection  of  the  samples  for  exam- 
ination, and,  in  the  event  that  the  importer  is  dissatisfied  with  the 
examination,  provision  is  made  for  re-examination  before  a  board 
composed  of  three  general  appraisers,  whose  conclusion  should  be 
"  after  due  examination,"  it  might  well  have  been  held  that  due 
process  was  provided  by  the  law.  What  was  "  due  examination " 
by  the  re-examining  board,  would,  of  course,  have  been  determined 
with  regard  to  the  exigencies  of  the  government;  but  it  might  have 
been  held  to  include  some  restricted  right  of  hearing,  as  in  the  case 
of  the  appraisal  of  the  value  of  imports. 


DUE  PROCESS  OF  LAW  373 

struction  of  houses  in  the  path  of  a  conflagration  or    Chapter 

of  infected  articles  or  animals.     Delay,  before  the  

destruction  of  the  property  condemned,  for  the  pur- 
pose of  giving  notice,  and  it  may  be  to  ascertain  who 
are  the  parties  whose  interests  will  be  atfected,  and 
further  delay  for  such  hearing  as  the  parties  may 
think  necessary  for  the  protection  of  their  interests, 
might  defeat  all  beneficial  results  from  the  con- 
templated action,^  Having  regard  to  the  necessities 
of  this  class  of  cases  then,  and  adjusting  the  re- 
quirements of  notice  and  hearing  to  it,  it  is  held 
that  local  authorities  may,  when  the  necessities  of 
the  case  justify  this  action,  proceed  to  condemn 
property  and  destroy  it  as  a  nuisance  in  advance  of 
notice  or  a  hearing.  But  the  property  owner  has  a 
right  to  have  a  judicial  determination  of  the  validity 
of  the  regulation  and  the  existence  of  the  nuisance 
upon  a  review  of  the  matter  in  the  courts.  The  ex 
parte  determination  of  the  local  authorities  can  not 
be  made  conclusive.^ 

When  authority  is  given  to  municipal  legislative  f^^^^lf^y°^ 
boards  or  local  officials  to  regulate  the  use  of  prop-  furfsdfc-'"^ 
erty  and  to  abate  as  nuisances  infractions  of  their 
regulations,  they  are,  according  to  most  authorities, 
said  to  be  vested  with  a  quasi-judicial  or  judicial 
authority,  the  valid  exercise  of  which  depends  as  a 
jurisdictional  fact  on  the  actual  existence  of  the 
nuisance.  Their  authority  is  to  declare  a  nuisance 
where  the  facts  warrant  it,  and  not  to  determine  that 
the  lawful  possession  of  inoffensive  property  is  a 

8  Salem  v.  Eastern  R.  Co.,  98  Mass.  431,  96  Am.  Dee.  650;  People 
V.  Board  of  Health,  140  N.  Y.  1,  37  Am.  St.  Rep.  522. 

9  Stone  r.  Heath,  179  Mass.  385;  Daniels  v.  Homer,  139  N.  Car. 
219;  and  citations  to  last  note  supra. 


tional  fact. 


374  DUE  PEOCESS  OF  LAW 

Chapter    nuisance.     This  leaves   open  a  judicial  inquiry  to 

which  hearing  is  a  necessary  requisite.^     In  abating 

a  nuisance  under  such  an  order,  local  boards  or  offi- 
cers act  at  their  peril,  and  if  it  is  proved  that  they 
have  overstepped  the  bounds  of  reasonable  police 
action,  the  order  will  be  no  protection  to  them. 
When  they  are  in  doubt  whether  the  order  is  within 
their  authority,  they  may  always  have  the  matter 
determined  in  advance  by  the  courts  in  a  proceeding 
to  restrain  or  abate  the  nuisance.^  But  they  need 
not  do  so,  and  the  exigencies  of  the  situation  may 
justify  immediate  action. 

1  Pearson  v.  Zehr,  138  111.  48;  Loesch  v.  Koehler,  144  Ind.  278; 
Miller  i'.  Horton,  152  Mass.  540;  Hutton  v.  Camden,  39  N.  J.  L. 
122;  Underwood  v.  Green,  42  N.  Y.  140;  People  i'.  Board  of  Health, 
140  N.  Y.  1 ;  Dillon,  Munic.  Corp.,  4th  ed.  §  374.  See  also  Yates  v. 
Milwaukee,  10  Wall.  (U.  S.)  497. 

Perhaps  the  matter  might  be  stated  in  this  way: 
The  legislative  powers  of  municipalities  are  such  only  as  are 
expressly  conferred  by  the  legislature,  and  a  condition  of  their 
valid  exercise  is  that  ordinances  passed  must  be  in  harmony  with 
the  general  law  of  the  State.  This  question  of  the  conformity  of  the 
ordinance  with  the  general  law  raises  a  judicial  question,  for 
the  determination  of  which,  notice  and  hearing  are  necessary.  But 
this  should  not  imply  that  notice  and  hearing  are  necessary  of  the 
action  of  the  municipal  authorities  in  considering  and  framing  the 
general  regulation;  for  if  they  act  within  their  delegated  legislative 
power,  their  action  is  legislative  and  is  due  process  without  notice. 
Chicago,  etc.,  R.  Co.  v.  Nebraska,  170  U.  S.  57;  People  v.  Board  of 
Health,  140  N.  Y.  1.  When  the  local  legislative  body  act  in  the 
case  of  the  property  of  a  particular  individual  and  declare  it  to 
be  a  nuisance,  it  seems  that  they  are  in  so  doing  still  exercising 
legislative  powers,  although  the  rule  they  frame  is  confined  to  a 
single  individual,  and  the  property  owner  can  not  complain  of  want 
of  prior  notice  and  an  opportunity  to  oppose  the  action  taken.  But 
he  still  has  a  right  in  the  courts  to  test  the  legality  of  the  action. 

2  In  People  v.  Board  of  Health,  140  N.  Y.  1,  it  is  said :  "  The 
nuisance  actually  existing,  and  the  jurisdiction  having  been  regu- 
larly exercised,  the  order  or  ordinance  has  all  the  operation  and 
effect  provided  in  the  act,  and  the  persons  who  abate  the  nuisance 
have  the  protection  which  they  would  not  have  as  private  persons 


DUE  PROCESS  OF  LAW  375 

Chapter 

Right  to  Destroy  Before  Hearing  Limited  hy  ^^- 

Necessity. 


The  right  to  destroy  property  in  advance  of  a 
hearing  is  limited  to  cases  of  necessity.  ■  The  neces- 
sity is  apparent  where  the  property  in  its  existing 
condition  constitutes  a  continuing  menace  to  the 
health  or  property  of  the  community,  as  in  the  in- 
stances just  mentioned,  of  infected  clothing,  dis- 
eased animals,  or  houses  in  the  path  of  a  conflagra- 
tion. But  necessity  has  been  held  to  arise  in  other 
cases,  though  a  necessity  which  sprung  from  differ- 
ent consideration  and  rested  on  different  grounds. 
Thus  the  effective  administration  of  a  penal  statute 
has  been  held  to  justify  summary  confiscation  of 
property  of  small  value,  while  it  was  clearly  inti- 
mated that  such  considerations  would  not  justify 
destruction  in  advance  of  hearing  in  the  case  of 
valuable  property.^  But  it  is  to  be  observed  that 
its  trifling  amount  is  dealt  with,  not  as  putting  the 
property  beyond  constitutional  protection,  but  as  a 
consideration  which  the  legislature  might  properly 
have  in  mind  in  providing  for  the  enforcement  of 

abating,  not  a  private  nuisance  especially  injurious  to  them,  but  a 
public  nuisance  injurious  to  the  general  public.  It  may  be  said 
that  if  the  determination  of  a  board  of  health  as  to  a  nuisance  be 
not  final  and  conclusive,  then  the  members  of  the  board,  and  all 
persons  acting  under  their  authority  in  abating  the  alleged  nuisance, 
act  at  their  peril ;  and  so  they  do,  and  no  other  view  of  the  law 
would  give  adequate  protection  to  private  rights.  They  should  not 
destroy  property  as  a  nuisance  unless  they  know  it  to  be  such,  and 
if  there  be  doubt  whether  it  be  a  nuisance  or  not,  the  board  should 
proceed  by  action  to  restrain  or  abate  the  nuisance,  and  thus  have 
the  protection  of  a  judgment  for  what  it  may  do." 

sLawton  v.  Steele,  152  U.  S.  133,  affirming  119  N.  Y.  226;  Bit- 


Where 

necessity 

exists. 


376  DUE  PROCESS  OF  LAW 

Chapter  the  act.  The  object  to  be  attained,  and  the  effective- 
ness  of  the  means  adopted  (although  this  may  de- 
pend on  the  value  of  the  property  confiscated)  are 
the  real  considerations,  and  not  the  value  of  the 
loroperty  as  a  matter  in  itself. 
fis^nefi^n  Thc  Federal  Supreme  Court,  in  sustaining  an  act 
helrhig!°  allowing  the  destruction  of  fish  nets  by  a  game 
warden,  said:  "The  value  of  the  nets  in  question 
was  but  fifteen  dollars  apiece.  The  cost  of  con- 
demning one  (and  the  use  of  one  is  as  illegal  as  the 
use  of  a  dozen)  by  judicial  proceedings  would 
largely  exceed  the  value  of  the  net,  and  doubtless 
the  State  would,  in  many  cases,  be  deterred  from 
executing  the  law  by  the  expense.  They  could  only 
be  removed  from  the  water  with  difficulty  and  were 
liable  to  injury  in  the  process  of  removal.  The  ob- 
ject of  the  law  is,  undoubtedly,  a  beneficent  one,  and 
the  State  ought  not  to  be  hampered  in  its  enforce- 
ment by  the  application  of  constitutional  provisions 
which  are  intended  for  the  protection  of  substan- 
tial rights  of  property.  It  is  evident  that  the 
efficacy  of  this  statute  would  be  very  seriously  im- 
paired by  requiring  every  net  illegally  used  to  be 
carefully  taken  from  the  water,  carried  before  a 
court  or  magistrate,  notice  of  the  seizure  to  be  given 
by  publication,  and  regular  judicial  proceedings  to 
be  instituted  for  its  condemnation."  It  may  be 
added  that  the  amount  at  risk  in  such  a  case  being 
trifling  could  not  be  supposed  to  act  as  a  deterrent 
on  the  offender,  while  in  the  case  of  property  of  con- 
siderable value,  the  confiscation  in  itself  would  be 

tenhaus  v.  Johnston,  92  Wis,  588;  Daniels  v.  Homer,   139  N.  Car. 
219. 


ings. 


DUE  PROCESS  OF  LAW  377 

the  thing  dreaded  and  the  necessity  for  summary    Chapter 

measures,  existing  in  the  actual  case  to  give  effect-  ■ 

iveness  to  the  law,  would  not  arise.^  stTte'Soid? 

Some  of  the  State  courts  have  held,  however,  that 
a  right  to  destroy  property  on  the  ground  of  nui- 
sance does  not  exist  until  some  sort  of  judicial  de- 
termination, though  property  may  be  seized  and 
held  till  judicial  proceedings  can  be  instituted  to 
try  the  right  to  have  it  forfeited.^  These  holdings 
are  rested  on  the  ground  that  forfeiture  is  neces- 
sarily a  penal  provision  and  can  be  inflicted  only 
after  hearing.  Such  laws  are  upheld,  however,  on 
the  ground,  not  of  the  abrogation  of  notice,  but  that 
necessity  requires  its  postponement.  The  necessity 
must  exist  and  its  existence  is  to  be  determined  in 
view  of  all  the  facts.  No  sufficient  necessity  has 
been  held  to  exist  for  the  slaughter  without  prior 
notice  or  hearing  of  neglected  or  abandoned  ani- 
mals, and  a  statute  empowering  certain  officials  to 
proceed  in  this  way  has  been  held  unconstitutional.^ 
Nor  is  the  seizure  and  sale  of  ships  in  the  absence 

4  Lawton  V.  Steele,  152  U.  S.  133,  141.  This  decision  has  been 
condemned  by  some  authorities.  Thus  Professor  Freund  declares 
that  the  right  to  forfeit  property  "  is  not  an  exercise  of  the  police 
power,  but  of  the  judicial  power,"  and  requires  judicial  proceedings, 
with  notice  in  personam  or  in  rem.  And  he  remarks  on  the  argu- 
ment that  the  small  value  of  the  property  justified  the  forfeiture 
that  "  the  trifling  value  of  the  property  taken  and  the  dispropor- 
tionate cost  of  condemnation  proceedings  is  an  inadmissible  argument 
when  constitutional  rights  are  involved."  Freund,  Police  Power, 
525  et  seq. 

5  Dunn  V.  Burleigh,  62  Me.  24;  King  v.  Hayes,  80  Me.  206; 
Edson  V.  Crangle,  62  Ohio  St.  49  (a  case  essentially  similar  to  Law- 
ton  V.  Steele,  152  U.  S.  133,  which  the  court  did  not  follow,  although 
it  was  fully  argued  before  them). 

eLoesch  v.  Koehler,  144  Ind.  278. 


378  CUE  PROCESS  OF  LAW 


Chapter    Qf  pi'ior  notice  and  hearing  a  reasonable  exercise  of 


police  power.^ 
Establish-  The  legislature  acting  directly  may  establish  by 

ment  of  .  ^  . 

rates.  general  laws  a  scale  of  rates,  provided  they  are 

reasonable,  for  the  use  of  businesses  affected  with  a 
public  interest,^  but  where  the  establishment  of 
rates  is  delegated  to  administrative  officials  (such 
as  a  State  railroad  commission  not  ''clothed  with 
judicial  functions  or  possessing  the  machinery  of  a 
court  of  justice")  the  question  of  reasonableness  is 
a  judicial  one,  and  any  rates  established,  however 
reasonable  they  may  be,  are  void  in  the  absence  of 
notice  and  hearing.^  Where  notice  and  hearing  is 
required,  a  general  statute  or  constitutional  pro- 
vision, as  in  the  case  of  general  taxes,  fixing  the 
time  of  the  meeting  of  administrative  or  local  offi- 
cers to  pass  upon  the  question  of  rates,  is  sufficient 
notice.^ 

^  Colon  V.  Lisk,  153  N.  Y.  183. 

8  Budd  V.  New  York,  143  U.  S.  517,  affirming  117  N.  Y.  1,  5  L. 
R.  A.  566.  The  reasonableness  of  the  rates  so  established  may  be 
questioned  in  an  action  brought  against  the  company  to  recover  a 
penalty  for  violating  them.  St.  Louis,  etc.,  R.  Co.  v.  Gill,  156  U. 
S.  649. 

9  Chicago,  etc.,  R.  Co.  v.  Minnesota,  134  U.  S.  418,  reversing  38 
Minn.  281.  See  San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  556, 
38  L.  R.  A.  460. 

1  San  Diego  Land  Co.  v.  National  City,  174  U.  S.  739,  752. 


TABLE  OF  CASES  CITED. 


A.  PAGE 

Abbott  V.  Tacoma  Bank  of  Commerce,  175  U.  S.  409 161 

Adams  v.  New  York,  192  U.  S.  585 34,  58,  64,  180,  181,  188 

Adams  v.  Shelbyville,  154  U.  S.  473 251 

Adams  Express  Co.  v.  Kentucky,  166  U.  S.  171 225 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.  194,  166  U. 

S.  185   217,  225 

Addystone  Pipe,  etc.,  Co.  v.  U.  S.,  175  U.  S.  211,  229 358 

Adirondack  R.  Co.  v.  New  York,  176  U.  S.  335 291,  299 

Ah  Sin  V.  Wittman,   198  U.  S.  500 346 

Aikens  v.  Wisconsin,  195  U.  S.  194 358 

Albany  St.,  Matter  of,  11  Wend.   (N.  Y.)    149 276 

Alexander,  The,  60  Fed.  Rep.  914 337 

Allen  V.  Armstrong,  16  Iowa  513 182 

Allen  v.  Georgia,  166  U.  S.   138 39,  167,  168 

Allen  V.  Pullman's  Palace  Car  Co.,  191  U.  S.  171 217 

AlientoATO  V.  Henrj-,  73  Pa.   St.  404 212 

Allgeyer  v.  Louisiana,  165  U.  S.  578 140,  304,  352 

Allnut  V.  Inglis,   12  East  .527 314 

American  Express  Co.  v.  Indiana,  165  U.  S.  255 225 

American  Pub.  Co.  V.  Fisher,  166  U.  S.  464 163,  200 

American  Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70 220,  225 

Ames  V.  Union  Pac.  R.  Co.,  64  Fed.  Rep.  165 322,  323 

Anderson  v.  Kerns  Drainage  Co.,  14  Ind.  199 259 

Anderson  v.  Wellington,  40  Kan.   173 365 

Andrews  v.  Andrews,   188  U.   S.   14 88,   122,  124 

Andrews  V.  Swartz,  156  U.  S.  272 169 

Ann,  The,  5  Hughes   (U.  S.)   292 Ill 

Antoni  v.  Greenhow,  107  U.  S.  769 175 

Apex  Transp.  Co.  v.  Garbade,  32  Oregon  582 270 

Archer  v.  James,  2  B.  &  S.  82,  110  E.  C.  L.  82 354 

Ark  Foo  V.  U.  S.,  128  Fed.  Rep.  697 195 

Armstrong  t?.  U.  S.,  182  U.  S.  243 197 

Arndt  v.  Griggs,  134  U.  S.  316 114,  239 

Arnold  v.  Covington,  etc.,  Bridge  Co.,  1  Duval  (Ky-)  372 258 

Arrowsmith  v.  Harmoning,  118  U.  S.  194 41 

Ashford  v.  Thornton,  1  B.  &  Aid.  405 25 

[379] 


380  TABLE  OF  CASES  CITED. 

PAGE 

Assessors  v.  Comptoir  d'Escompte,  191  U.  S.  381 120,  222 

Atchison,  etc.,  R.  Co.  v.  Matthews,  174  U.  S.  96 351 

Atherton  v.  Atherton,  181  U.  S.  155 92,  122,  123,  125,  127,  129 

Atlantic,    tc,  R.  Co.  v.  Penny,  119  Ga.  479 276,  298,  299 

Atlantic,  eic,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160 217 

Atty.-Gen.  v.  Jochim,  99  Mich.  358 333 

Atty.-Gen.  v.  Lowrey,  199  U.  S.  233 213,  333 

Atty.-Gen.  v.  Williams,  174  Mass.  476 262 

Aubrey,  Matter  of,  36  Wash.  308 356 

Auditor  v.  Railroad  Co.,  6  Kan.  500 164 

Auffmordt  v.  Hedden,  137  U.  S.  310 242 

Augusta  Bank  v.  Earle,  13  Pet.   (U.  S.)   519 101 

Avent-BeatLyville  Coal  Co.,  96  Ky.  218 356 

Avery  v.  Vermont  Electric  Co.,  75  Vt.  235 264 


B. 

Backus  V.  Fort  St.  Union  Depot  Co.,  169  U.  S.  557 

157,  160,  275,  282,  290,  291,  299 

Bacon  v.  Hooker,  177  Mass.  335 120 

Bagg's  Case,  11  Coke  99a,  1  Rolle's  Rep.  225 2,  5,  17,  25,  74 

Bailey  v.  Philadelphia,  etc.,  R.  Co.,  4  Ilarr.   (Del.)   389 143 

Baker  V.  Norwood,  74  Fed.  Rep.  997 249 

Balch  V.  Essex  County,  103  Mass.  106 259 

Baldwin  v.  Hale,  1  Wall.   (U.  S.)   223 130,  132 

Baltimore  v.  Radecke,  49  Md.  217. 365 

Baltimore,  etc.,  R.  Co.  v.  Harris,  12  Wall.   (U.  S.)   65 102,  105 

Baltimore,  etc.,  R.  Co.  v.  Nesbit,  10  How.   (U.  S.)   395 155 

Baltimore,  etc.,  R.  Co.  V.  Pittsburgh,  etc.,  R.  Co.,  17  W.  Va.  812.  298 

Baltimore  Traction  Co.  V.  Belt  R.  Co.,  151  U.  S.  138 38 

Bambaugh  v.  Bambaugh,  11  S.  &  R.  (Pa.)   191 158 

Bank  of  Australasia  V.  Harding,  9  C.  B.  661 94 

Barber  v.  Barber,  21  How.   (U.  S.)   582 122,  123,  126 

Barbier  v.  Connolly,  113  U.  S.  27 300,  305,  313 

Barney  v.  Keokuk,  94  U.  S.  324 285 

Barnitz  v.  Beverly,  163  U.  S.  118 176 

Barrett  v.  Barrett,  120  N.  Car.  127 158 

Barrett  v.  Holmes,  102  U.  S.  651 171 

Barron  r.  Baltimore,  7  Pet.   (U.  S.)   243 19 

Barrow  Steamship  Co.  v.  Kane.  170  U.  S.  100 95,  102,  105,  189 

Barton  v.  Morris,  15  Ohio  408 158 

Bass  r.  Roanoke  Nav.,  etc.,  Co.,   Ill  N.  Car.  439 157 

Bates,  etc.,  Co.  v.  Payne,  194  U.  S.  106 369 

Battle,  etc.,  R.  Co.  v.  Montana  Union  R.  Co.,  16  Mont.  504 273 

Bauman  v.  Ross,  167  U.  S.  548 247,  248,  289,  290,  299 


TABLE   OF   CASES   CITED.  381 

PAGE 

Beall  V.  New  Mexico,  16  Wall.  (U.  S.)  535 90 

Bedford  r.  U.  S.,  192  U.  S.  217 293 

Beekman  v.  Saratoga,  etc.,  R.  Co.,  3  Paige  Ch.  (N.  Y.)  45.  .  .254,  257 

Beers  v.  Shannon,  73  N.  Y.  292 121 

Bell  V.  Bell,  181  U.  S.  175 122 

Bellingham  Bay,  etc.,  R.  Co.  v.  New  Whatcom,  172  U.  S.  318.. 

79,  239 

Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  232. . .  .GO,  211,  237,  239 

Bergemann  v.  Backer,  157  U.  S.  655 40,  168 

Bertholf  v.  O'Reilly,  74  N.  Y.  509 140,  343 

Bessette  v.  People,  193  111.  334 3.56 

Binns  v.  U.  S.,  194  U.  S.  486 200 

Bittenhaus  v.   Johnston,   92  Wis.  588 376 

Black  V.  Jackson,   177  U.   S.  349 200 

Black  V.  Zacharie,  3  How.    (U.  S.)    514 118 

Blackstone  v.  Miller,  188  U.  S.  189 119,  120,  222,  223 

Blake  V.  McClung,  172  U.  S.  239 95,  101,  102,  190 

Bloodgood  V.  Mohawk,  etc.,  R.  Co.,  18  Wend.   (N.  Y.)   9 .   263 

Bloomfield,  etc..  Natural  Gas  Light  Co.  V.  Richardson,  63  Barb. 

(N.   Y.)    437 259,  271 

Board  of  Health  v.  Van  Hoesen,  87  Mich.  533 262,  265 

Board  of  Public  Works  V.  Columbia  College,  17  Wall.    (U.  S.) 

521    97 

Boggs  V.  Com.,  76  Va.  989 68,     85 

Bolln  V.  Nebraska,  176  U.   S.  86 163 

Bolt  V.  Stennett,  8  T.  R.  606 314 

Bonaker  v.  Evans,  16  Q.  B.  162,  71  E.  C.  L.  162 3,     75 

Bonaparte  v.  Camden,  etc.,  R.  Co.,  Baldw.   (U.  S.)   205 257 

Bonham's  Case,  8  Coke  115,  II80 26,  29,     58 

Bonnemort  v.  Gill,   167  Mass.  338 116 

Booth  V.  Hlinois,   184  U.  S.  425 345,  346 

Booth  V.  Woodbury,  .32  Conn.  128 232 

Boston  Beer  Co.  V.  Massachusetts,  97  U.  S.  26 304,  336 

Boston,  etc.,  R.  Co.  v.  Salem,  etc.,  R.  Co.,  2  Gray  (Mass.)    1 283 

Boswell  V.  Otis,  9  How.   (U.  S.)    336 87,  89,  112 

Bottoms  V.  Brewer,   58   Ala.   288 264 

Bowditch  V.  Boston,  101  U.  S.  16 205 

Boyd  V.  Nebraska,  143  U.  S.  155 335 

Boyd  V.  U.  S.,  116  U.  S.  616 188 

Boyett,  In  re,  136  N.  Car.  415 344 

Braceville  Coal  Co.  V.  People,  147  111.  66 141,  355 

Bradley,  Ex  p.,  7  Wall.   (U.  S.)   523 171 

Bradley  v.  Fallbrook  Irrigation  Dist.,  68  Fed.  Rep.  948 243 

Bradley  r.  Fisher.   13  Wall.    (U.   S.)    335 171 

Bradley  v.  Lightcap,    195   U.   S.   1 155 


382  TABLE   OF   CASES   CITED. 

PAGE 

Bradshaw  v.  Rogers,  20  Johns.  (N.  Y.)   103 281 

Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumn.  (U.  S.)  600 76,  85,  111 

Brass  v.  Stoesser,  153  U.  S.  391 315,  317 

Brewer  v.  Bowman,  9  Ga.  37 264 

Brewster  v.  J.  J.  Rogers  Co.,  169  N.  Y.  73 258 

Bridal  Veil  Lumbering  Co.  v.  Johnson,  30  Oregon  205 275 

Bridge  Co.  v.  U.  S.,  105  U.   S.  470 288 

Brinton  v.  Seevers,  12  Iowa  389 158 

Bristol  V.  Washington  County,   177  U.  S.  133 222 

British  Cast  Plate  Manufacturers  V.  Meredith,  4  T.  R.  794 205 

Bronson  t\  Kinzie,  1  How.   (U.  S.)  311 175,  176 

Brooklyn  City  R.  Co.  v.  Tax  Com'rs,  199  U.  S.  48 227,  246 

Brooks  V.  Dun,  51  Fed.  Rep.   158 97 

Brown  v.  Houston,  114  U.  S.  622 220 

Brown  v.  Lee  Com'rs,  50  ]Miss.  468 56 

Brown  v.  Maryland,  12  Wheat.   (U.  S.)    419 220 

Brown  v.  New  Jersey,  175  U.  S.  175 160,  163 

Brown  r.  Smart,  69  Md.  331,  145  U.  S.  454 131,  133 

Bro-ivn  v.  Turner,  70  N.  Car.  102 70 

Brunswick  Gas  Light  Co.  v.  United  Gas,  etc.,  Co.,  85  Me.  532.  .  .  259 

Buckingham  v.  Smith,  10  Ohio  296 270 

Budd  V.  New  York,  143  U.  S.  517 315,  316,  320,  378 

Budd  V.  State,   3  Humph.    (Tenn.)    483 63 

Burden  v.  Stein,  27   Ala.   104 259 

Burfenning  v.  Chicago,  etc.,  R.  Co.,  163  U.  S.  321 369 

Burlington  v.  Beasley,  04  U.  S.  310 316 

Burnett  v.  Boston,   173  Mass.   173 297 

Burnett  v.  Sacramento,  12  Cal.  76 283 

Burr,  Ex  p.,  \^Tieat.   (U.  S.)   529,  2  Cranch   (C.  C.)   379 171 

Butcher's  Union,  etc.,  Co.  V.  Crescent  City  Live  Stock  Landing, 

etc.,  Co.,   Ill   U.  S.   746 138,   304,  347 

Butler  V.  Pennsylvania,  10  How.   (U.  S.)   402 152,  333,  334 

Butte,  etc.,  R.  Co.  v.  Montana  Union,  etc.,  R.  Co.,  16  Mont.  504. . 

277,  278 

Buttfield  V.  Stranahan,  192  U.  S.  470 496,  370,  372 

C. 

Cady  V.  Associated  Colonies,  119  Fed.  Rep.  420 101,  103 

Calder  v.  Bull,  3  Dall.   (U.  S.)   386 143,  145,  146,  147 

Caldwell  v.  Texas,  137  U.  S.  692 38,  52,  80,  163,  167,  168 

California  Reduction  Co.  v.  Sanitary  Reduction  Works,  199  U.  S. 

306 201,  303,  305,  308,  309,  337,  339 

Callan   v.  Wilson,   127   U.   S.   540 200 

Callanan  v.  Hurley,  93  U.  S.  387 180 


TABLE   OF   CASES   CITED.  383 

PAGE 

Campbell  v.  Haverhill,  155  U.  S.  610 172 

Campbell  v.  Holt,  1 15  U,  S.  620 173 

Canada  Southern  R.  Co.  v.  International  Bridge  Co.,  8  App,  Cas. 

723,    731 327 

Capel  V.  Child,  2  Cromp.  &  J.  558 75 

Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S.  238 349 

Capital  Traction  Co.  v.  Hof,  174  U.  S.  1 200 

Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401 351,  359 

Carstairs  v.  Cochran,  193  U.  S.   10 119 

Cary  Library  v.  Bliss,  151  Mass.  364 283 

Cass  Farm  Co.  v.  Detroit,  181  U.  S.  396 251,  252 

Castillo  V.  McConnico,  1G8  U.  S.  674 39 

Castrique  V.  Imrie,  L.  R.  4  H.  L.  414 109 

Cecil  V.  Green,  161  111.  265 317 

Central  Bridge  Corp.  v.  Lowell,  4  Gray  (Mass.)   482 255 

Central  Land  Co.  v.  Laidley,  159  U.  S.  103 40 

Central  Union  Telephone  Co.  v.  State,  118  Ind.  194 317 

Chadwick  v.  Kelley,  187  U.  S.  540 247 

Chae  Chan  Ping  t;.  U.  S.,  130  U.  S.  581 190 

Chappell  V.  U.  S.,  160  U.  S.  499 257 

Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.   (U.  S.)   420 151 

Charleston  Natural  Gas  Co.  v.  Lowe,  52  W.  Va.  662 317 

Charlotte,  etc.,  R.  Co.  v.  Gibbes,  142  U.  S.  586 340 

Cheely  v.  Clayton,  110  U.  S.  701 123,  126 

Cheever  v.  Wilson,  9  Wall.   (U.  S.)    108 123,  126 

Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S.  641. .  . . 

254,   257,  291 

Chesapeake,  etc..  Canal  Co.  v.  Key,  3  Cranch  (C.  C.)  599 257 

Chesapeake,  etc..  Telephone  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66 

Md.  399  317 

Chestnut  v.  Shane,  16  Ohio  599 158 

Chicago  V.  Taylor,  125  U.  S.  161 279,  295 

Chicago  V.  Trotter,  136  111.  430 365 

Chicago,  etc.,  R.  Co.  v.  Ackley,  94  U.  S.  179 318 

Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226 

1,  26.  28,  30,  33,  58,  68,  280,  282 

Chicago,  etc.,  R.  Co.  v.  Dey,  35  Fed.  Rep.  866,  879 322,  325 

Chicago,  etc.,  R.  Co.  v.  Iowa,  94  U.  S.  155 63,  318 

Chicago,  etc.,  R.  Co.  v.  Minnesota,  134  U.  S.  418 182,  319,  378 

Chicago,  etc.,  R.  Co.  v.  Morehouse,  112  Wis.  1 256,  263,  269 

Chicago,  etc.,  R.  Co.  v.  Nebraska,  170  U.  S.  57. .  .304,  340,  366,  374 

Chicago,  etc.,  R.  Co.  v.  Pontius,   157  U.   S.   209 313 

Chicago,  etc.,  R.  Co.  v.  State,  50  Neb.  399 269 

Chicago,  etc.,  R.  Co.  v.  Sturm.   174  U.   S.  710 121 

Chicago,  etc.,  R.  Co.  v.  Wellman,  143  U.  S.  339 320 


384  TABLE   OF  CASES   CITED. 

FA.GE 

Chicago,  etc.,  R.  Co.  v.  Wilson,    17   111.    123 258 

Chicago,  etc.,  R.  Co.  v.  VViltse,  116  111.  449 270 

Chicago,  etc.,  R.  Co.  v.  Zemecke,  183  U.  S.  582 342 

Chicago  L.  Ins.  Co.  v.  Needles,  113  U.  S.  574 151 

Chicago  Theological  Seminary  v.  Illinois,  188  U.  S.  662 227 

China  Mut.  Ins.  Co.  v.  Force,  142  N.  Y.  95 85 

Chin  Bak  Kan  «;.  U.  S.,  186  U.  S.  193 195 

Church  V.  Kelsey,   121   U.   S.   282 162,  164 

Church  of  Jesus  Christ  v.  U.  S.,  136  U.  S.  1 1,  98,  199,  200 

Citizens'  Sav.,  etc.,  Assoc,  v.  Topeka,  20  Wall.  (U.  S.)  655.  .228,  230 

Civil  Rights  Cases,  109  U.  S.  3 43,  44,  317 

Clark  V.  Nash,  198  U.  S.  361 269 

Cleveland,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  439 224 

Cleveland,  etc.,  R.  Co.  v.  People,  212  111.  638 71 

Cline,  Matter  of,   1  Ben.    ( U.  S.)   338 185 

Clinton  v.  Cedar  Rapids,  etc.,  R.  Co.,  24  Iowa  455 285 

Coddington  v.  Coddington,  20  N.  J.  Eq.  263 125 

Coe  V.  Errol,  116  U.  S.  517 220,  223 

Cole,  Ex  p.,  1  McCrary   ( U.  S.)   405 171 

Cole  v.  Cunningham,  133  U.  S.   107 87,  106,  107,  131,   133 

Cole  V.  La  Grange,  113  U.  S.  1 228 

Collector  v.  Day,  11  Wall.    (U.  S.)    113 217 

CJolon  V.  Lisk,  153  N.  Y.  188 308,  310,  378 

Columbia  Bank  v.  Okely,  4  Wheat.   (U.  S.)    235 51 

Columbia  Bottom  Levee  Co.  v.  Meier,  39  Mo.  53 259 

Commercial  Union  Tel.  Co.  v.  New  England  Telephone,  etc.,  Co., 

61   Vt.  241 317 

Com.  V.  Alger,  7  Cush.   (Mass.)   53 204,  300 

Com.  V.  Boston  Advertising  Co.,  74  N.  E.  Rep.  601 311 

Com.  V.  Dana,  2  Met.    (Mass. )    329 188 

Com.  r.  Davis,   162  Mass.   510 330,  365 

Com.  11.  Gaming  Implements,  119  Mass.  332 337 

Com.  V.  Hamilton  Mfg.  Co.,    120  Mass.  383 347 

Com.  V.  Highway  Com'rs,  6  Pick.    (Mass.)    508 160 

Com.  V.  Maeloon,   101   Mass.    1 135 

Com.  V.  Pear,    183   Mass.   242 306 

Com.  V.  Perry,    155   Mass.    117 355 

Com.  V.  R.  I.  Sherman  Mfg.  Co.,  75  N.  E.  Rep.  71 333 

Com.  V.  Tibbetts,    157   Mass.   519 188 

Com.  V.  Williams,  6  Gray    (Mass.)    1 180,  181 

Com.  V.  Wyman,   12  Cush.    (Mass.)   237 147 

Conley  v.  Mathieson  Alkali  Works,  190  U.  S.  406 103 

Connecticut  Mut.  L.  Ins.  Co.  v.  Cushman,  108  U.  S.  64 175 

Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,  172  U.  S.  602 103 

Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540 308 


TABLE   OF   CASES   CITED.  385 

PAGE 

Consolidated  Coal  Co.  v.  Illinois,  185  U.  S.  203 340,  368 

Converse,  In  re,  137  U.  S.  624 40,     80 

Cook  V.  Moffat,  5  How.    ( U.  S.)    310 133 

Cooper  V.  Reynolds,  10  Wall.   (U.  S.)   308 87,  89,  108,  111,  112 

Copin  V.  Adanison,  L.  R.  9  Exch.  345 94 

Coquitlam,  Steamer,  v.  U.  S.,  163  U.  S.  346 200 

Corry  v.  Baltimore,  90  Md.  321,  196  U.  S.  466 99,  120 

Coster  V.  Tide  Water  Co.,  18  N.  J.  Eq.  54,  518 259,  271 

Cotting  V.  Kansas  City  Stock  Yards  Co.,  183  U.  S.  79 

315,  317,  318,  323,  325,  327 

Colton  V.  Mississippi,  etc..  Boom  Co.,  22  Minn.  372 258 

Couch  V.  Jeffries,  4  Burr.  2460 154 

County  Seat  of  Linn  County,  15  Kan.  500 183 

Covington,  etc..  Turnpike  Road  Co.  v.  Sandford,  164  U.  S.  578.. 

189,   320,   322,  324 

Covington  Stock-Yards  Co.  V.  Keith,  139  U.  S.  128 258 

Cowles  V.  Mercer  County,  7  Wall.   (U.  S.)    118 95 

Craemer  v.  Washington,   168  U.  S.   124 169 

Crain  V.  U.  S.,  162  U.  S.  625 165 

Crane  v.  McGinnis,  1  Gill  &  J.   (Md.)  476 69 

Crapo  V.  Kelly,  16  Wall.   (U.  S.)   610 131 

Creston  Waterworks  Co.  v.  McGrath,  89  Iowa  502 277 

Cross  V.  North  Carolina,  132  U.  S.  131 .  .  135,  168 

Crowley  v.  Christensen,   137  U.  S.   86 201,  243 

Croxall  V.  Shererd,  5  Wall.  (U.  S.)   268 157 

Cuddy,  Petitioner,  131  U.  S.  280 170 

Cummings  v.  Missouri,  4  Wall.   (\J.  S.)  277 64,  67,  139,  147,  335 

Cunningham  V.  Butler,  142   Mass.  47 107 

Cunnius  v.  Reading  School  Dist.,   198  U,  S.  458 

88,    117,    118,    305,  306 


D. 

Daniels  v.  Homer,  139  N.  Car.  219 330,  373,  376 

D'Arcy  v.  Ketchum,  11  How.   (TL  S.)    165 75,  89,  91,     97 

Dartmouth  College  V.  Woodward,  4  Wheat.    (U.  S.)    518 

30,   51,    151,  333 

Dash  V.  Van  Kleeck,  7  .Johns.   (N.  Y.)   477 146,  154 

Davidson  v.  New  Orleans,  96   U.  S.   97 

16,  29,  30,  37,  56,  59,  68,  80,  240 

Davies  Henderson  Lumber  Co.  r.  Gottschalk,  81  Cal.  641 178 

Davis  V.  Burke,   179  U.  S.  404 163 

Davis  V.  Gray,  16  Wall.   (U.  S.)   203 151 

Davis  V.  Massachusetts,  167  U.  S.  43 330 

Davis  V.  Mills,  194  U.  S.  451 171,  172,  173 


386  TABLE   OF   CASES   CITED. 

PAGE 

Davis  i\  State,  68  Ala.  58 68,  348 

Davis  V.  Texas,  139  U.  S.  651 168 

Davis  V.  U.  S.,  160  U.  S.  485 181 

Day  V.  Savadge,  Hob.  87 58 

Day  V.  Stetson,  8   Me.   365 254,  258 

Dayton  Gold,  etc.,  Min.  Co.  v.  Sea  well,  11  Nev.  394 263,  264,  273 

Deansville  Cemetery  Assoc,  Matter  of,  66  N.  Y.  569 263,  265 

Debs,  In  re,  158  U.  S.  564 170 

Decatur  v.  Paulding,  14  Pet.    (U.  S.)    497 369 

Dehon  v.  Foster,  4  Allen   ( Mass. )   545 107 

De  La  Montanya  v.  De  La  Montanya,  112  Cal.  115 92,  129 

Delaware,  etc.,  R.  Co.  v.  Pennsylvania,  198  U.  S.  341.  .  .218,  221,  224 

Delaware  Railroad  Tax,  18  Wall.   (U.  S.)   206 224 

De  Lima  v.  BidAvell,  182  U.  S.  1 197 

De  Mill  V.  Lockwood,  3  Blatchf.   (U.  S.)   63 157 

Den  V.  Van  Riper,  10  N.  J.  L.  7 158 

Denny  v.  Bennett,  128  U.  S.  497 133 

Dent  V.  West  Virginia,  129  U.  S.  114 61,  335,  347 

Detroit  v.  Parker,  181  U.  S.  399 251 

Dewey  v.  Des  Moines,  173  U.  S.  193 112,  218,  240 

Dewey  v.  Kimball,  89  Minn.  454 117 

Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82 221 

Dickhaut  v.  State,  85  Md.  451 181 

Dillon  V.  Heller,  39  Kan.  599 239 

Dingley  V.  Boston,  100  Mass.  544 206,  259 

Ditson  V.  Ditson,  4  R.  I.  101 122,  124,  125 

Dobbins  v.  Los  Angeles,  195  U.  S.  223 307,  309 

Dodd  V.  St.  Louis,  etc.,  R.  Co.,  108  Mo.  581 98 

Doe  V.  Buford,  1  Dana  (Ky.)   510 64 

Dollar  Sav.  Bank  v.  U.  S.,  19  Wall.  (U.  S.)   240 237 

Dooley  v.  U.  S.,  182  U.  S.  222 197 

Dorgan  V.  Boston,  12  Allen   (Mass.)   223 213 

Dorman  v.  State,  34  Ala.  216 30 

Dorr  V.  V.  S.,  195  U.  S.  138 197,  198,  199 

Doughty  V.  Doughty,  28  N.  J.  Eq.  586 .  129 

Dow  V.  Beidelman,  125  U.  S.  680 63,  319,  325 

Downes  v.  BidwcU,  182  U.  S.  244 197,  198,  199,  200 

Dred  Scott  v.  Sandford,  19  How.  (U.  S.)  614 199 

Dreyer  v.  Illinois,  187  U.  S.  71 33,  58,  72,  164 

Dronberger  v.  Reed,   11   Ind.  420 257 

Duncan  v.  Missouri,  152  U.  S.  377 61,  62,  147,  164,  169 

Dunham  v.  Dunham,  62  111.  604 124,  125 

Dunn  V.  Beaman,  126  N.  Car.  766 173 

Dunn  V.  Burleigh,  62  Me.  24 371,  377 

Durkee  v.  Janesville,  28  Wis.  464 23,  24 


TABLE   OF   CASES   CITED.  387 


E.  PAGE 

Eakin  v.  Raub,  12  S.  &  R.   (Pa.)   330 143 

Earnshaw  v.  U.  S.,  146  U.  S.  60 242 

Eaton  V.  Boston,  etc.,  R.  Co.,  51  N.  H.  504 141,  292 

Edgecumbe  r.  Burlington,  46  Vt.  218 259 

Edson  V.  Crangle,  62  Ohio  St.  49 377 

Edwards  v.  Kearzey,  96  U.  S.  595 148,  176,  177 

Edwards  v.  Stonington  Cemetery  Assoc,  20  Conn.  466 259 

Effinger  V.  Kenney,  115  U.  S.  566 176 

Eidman  V.  Martinez,  184  U.  S.  578 222 

Eilenbecker  v.  District  Ct.,  134  U.  S.  31 54,   170 

Eldridge  V.  Trezevant,   160  U.  S.  452 286 

Ellis  V.  M'Henry,  L.  R.  6  C.  P.  234 132 

Elmore  v.  Drainage  Com'rs,  135  111.  269 259 

Equitable  L.  Assur.  Soc.  v.  Clements,  140  U.  S.  226 351 

Erie  R.  Co.  v.  Pennsylvania,  21  Wall.  (U.  S.)  492 224 

Erie  R.  Co.  v.  Steward,   170   N.  Y.    172 276,  298 

Evergreen  Cemetery  Assoc,  v.  Beecher,  53  Conn.  551. .  .  .259,  265,  269 
Excise  Com'rs  v.  Merchant,  103  N.  Y.  143 181 


Fairchild  v.  St.  Paul,  46  Minn.  540 275,  277 

Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112,  163 

19,  33,  37,  213,  228,  229,  230,  242,  245,  247,  248,  259,  266,  271,  273 

Fallsburg  Power,  etc.,  Co.  v.  Alexander,   101  Va.  98 

25.5,   263,   264,  318 

Fargo   V.  Hart,   193  U.   S.  490 224,  225 

Farrell  v.  West  Chicago  Park  Com'rs,  181  U.  S.  404 251 

Farrington  V.  Tennessee,  95  U.  S.  679 226 

Felix  V.  Wallace  County,  62  Kan.  832 182 

Felt  V.  Felt,  59  N.  J.  Eq.  607 124,  126 

Fidelity  Mut.  L.  Ins.  Assoc,  v.  Mettler,  185  U.  S.  308. .  .185,  332,  351 

Fielden  v.  Illinois,    143   U.    S.   452 167 

Fischer  v.  St.  Louis,  194  U.  S.  361 303,  365 

Fisher  v.  McGirr,  1  Gray   (Mass.)   1 204,  337 

Fitzgerald,  etc.,  Constr.  Co.  v.  Fitzgerald,  137  U.  S.  98 103 

Flaherty,  Matter  of,  105  Cal.  558 , 365 

Fletcher  v.  Peck,  6  Cranch   ( U.  S. )  87 147,  151 

Florida  Cent.,  etc.,  R.  Co.  v.  Reynolds,  183  U.  S.  471 210 

Fok  Yung  Yo  t?.  U.  S.,  185  U.  S.  296 194 

Fong  Yue  Ting  y.  U.  S.,  149  U.  S.  711 180,  191 

Foppiano  v.   Speed,   199  U.   S.   501 346 

Forsyth  v.  Hammond,  166  U.  S.  519 214 

Fort  Leavenworth  R.  Co.  v.  Lowe,  114  U.  S.  525 257 


388  TABLE   OF   CASES   CITED. 

PAGE 

Foster  v.  Kansas,  112  U.  S.  201 335 

Fox  V.  Cincinnati,   104  U.  S.  783 270 

Frazee,  Matter  of,  63  Mich.  396 365 

Freeland  v.   Williams,   131   U.   S.   405 150,  162 

Freeman  v.  Alderson,  119  U.  S.  185 .89,  108,  112,  113 

French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324 

35,  37,  247,  248,  251,  252 

French  v.   Taylor,  199  U.  S.  274 39,  240 

Frorer  v.   People,  141  III.  171 353,  355 


G. 

Gage  V.  Kaufman,  133  U.  S.  471 180 

Galligher  v.  Smiley,  28  Neb.  189 178 

Gallup  V.  Schmidt,  183  U.  S.  300 241 

Galpin  v.  Page,  18  Wall.   (U.  S.)   350 76,     87 

Garbutt  Lumber  Co.  v.  Georgia,  etc.,  R.  Co.,  Ill  Ga.  714 270 

Gardner  v.  Bonestell,  180  U.  S.  362 369 

Gardner  v.  Michigan,   199  U.  S.  325 337 

Gardner  v.  Newburgh,  2  Johns.  Ch.  (N.  Y.)   162. .  .253,259,272,  278 

Gardner  v.  Providence  Telephone  Co.,  23  R.   I.  262 317 

Garland,  Ex  p.,  4  Wall.    (U.  S.)    333 147,  335 

Gaylord  v.  Sanitary  Dist.,  204  111.   576 264 

Gee  Fook  Sing  v.  U.  S.,  7  U.  S.  App.  27 194 

Geer  v.  Connecticut,   161   U.   S.   519 181,  330 

Geer  v.  Mathieson  Alkali  Works,   190  U.   S.  428 103 

Geilinger  v.  Philippi,  133  U.  S.  246 131 

Georgia,  R.,  etc.,  Co.  v.  Smith.  128  U.  S.  174 305,  319 

Gibbs  V.  La  Society  Industrielle,  etc.,  25  Q.  B.  D.  399 132 

Gibson  v.  U.  S.,  166  U.  S.  269 293 

Gilbert  v.  Foote,  cited  in  72  N.  Y.   1 265 

Gilchrist  v.  Schmidling,   12  Kan.  263 24 

Gilman  v.  Lockwood,  4  Wall.   (U.  S.)   409 133 

Gilmore  v.  Hentig,  33  Kan.   156 238,  241 

Gilmore  v.  Shuter,  1  Vent.  330,  2  Show.   16,  2  Lev.  227,  2  Mod. 

310    154 

Gindrah   t\   People,    138    111.    103 188 

Giozza  V.  Tiernan,  148  U.  S.  657 61,  210 

Gladson  v.  Minnesota,   166  U.  S.  427 316 

Glidden  v.  Harrington,  189  U.  S.  255 80,  238,  240 

Globe,  The,  2  Blatchf.    (U.  S.)    427 109 

Gloucester  Ferry  Co.  v.  Pennsylvania,   114  U.  S.  196 218 

Godcharles  v.  Wigeman,  113  Pa.  St.  431 355 

Godwin  r.  Carolina  Telephone,  etc.,  Co.,  136  N.  Car.  258 317 

Goetze  v.  U.  S.,  182  U.  S,  221 197 


TABLE   OF  CASES   CITED.  389 

PAGE 

Goldey  v.  Morning  News,  156  U.  S.  518 92,  93,  95,  97,  103 

Gonzales  v.  Williams,  192  U.  S.  1 192 

Goodrich  v.  Detroit,  184  U.  S.  432 241,  245 

Goshen  v.  Richmond,  4  Allen   (Mass.)  458 180 

Gray  V.  Connecticut,  159  U.  S.  77 364 

Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  193  U.  S.  532 

360,  361 

Great  Western  Tel.  Co.  v.  Purdy,  162  U.  S.  329 171 

Green  v.  Van  Buskirk,  5  Wall.    (U.  S.)   307 119 

Green  Bay,  etc.,  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58 37 

Greenberg  v.  Western  Turf  Assoc,  140  Cal.  357 317 

Greene  v.  Briggs,  1  Curt.   (U.  S.)  311 16 

Greer  V.  Blanchar,  40  Cal.   194 158 

Griffin  v.  Mixon,  38  Miss.  424 234 

Grignon  v.  Astor,  2  Hoav.    (U.   S.)    319 89 

Grinder  v.  Nelson,  9  Gill   (Md.)   299 143 

Grover,  etc.,  Sewing  Mach.  Co.  v.  Radcliflfe,  137  U.  S.  287 

89,   92,  96 

Gulf,  etc.,  R.  Co.  V.  Ellis,  1G5  U.  S.  150 307,  350 

Gundling  v.  Chicago,  177  U.  S.  183 350,  363 

Gunn  V.  Barry,  15  Wall.   (U.  S.)  622 177 

Guyer  v.  Davenport,  etc.,  R.  Co.,  196  111.  370 276 

H. 

Haddock  v.  Haddock,  201  U.  S.  562 See  Preface 

Hagar  v.  Reclamation  Dist.  No.  108,  111  U.  S.  701 

53,  57,  80,  192,  209,  213,  236,  238,  241 

Hagar  v.  Yolo  County,  47  Cal.  222 273 

Hall  V.  Lanning,  91  U.  S.  160 99 

Hallinger  v.  Davis,  146  U.  S.  314 19,  81,  163 

Halter  v.  State,  (Neb.  1905)   105  S.  W.  Rep.  298 333 

Hamilton  v.  BroA\Ti,  161  U.  S.  256 114 

Hammett  v.  Philadelphia,  65  Pa.  St.  152 283 

Hancock  v.  Yaden,   121   Ind.   366 356 

Hanks  v.  State,  13  Tex.  App.  289 135 

Hanley  V.  Donohue,  116  U.  S.  1 87,  97 

Hannibal,  etc.,  R.  Co.  v.  Husen,  95  U.  S.  465 304 

Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181 130,  131 

Hardin  v.  Jordan,  140  U.  S.  371 285 

Harkness  v.  Hyde,  98  U.  S.  476 93 

Harris  v.  Glenn,  56  Ga.  94 177 

Harris  v.  Harris,  1 15  N.  Car.  587 124 

Hart  V.  Sanson,  110  U.  S.   151 89,  91,  114 

Hartung  v.  People,  22  N.  Y.  95 147 


390  TABLE   OF   CASES   CITED. 

PA.GE 

Harvey  t?.  Thomas,  10  Watts  (Pa.)    63 264 

Hassel  v.  Wilcox,  130  U.  S.  493 85 

Hastings  v.  Haug,  85  Mich.  87 337 

Hawaii  v.  Mankicbi,  190  U.  S.   197 198,   199,  200 

Hawker  v.  New  York,  170  U.  S.  189 184,  347 

Hawkins  Point  Light-House  Case,  39  Fed.  Rep.  77 285 

Hawley  v.  Hunt,  27  Iowa  303 130,  132 

Hayden  v.  Androscoggin  Mills,  1  Fed.  Rep.  93 105 

Hayes  v.  Missouri,   120  U.  S.  68 62 

Hazen  v.  Essex  County,  12  Cush,  (Mass.)  477 256 

Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9 264,  265,  266 

Healey  Lumber  Co.  v.  Morris,  33  Wash.  490 256,  263,  264 

Health  Dept.  v.  Trinity  Church,  145  N.  Y.  32 

203,  204,  306,  340,  341,  366 

Heffner  v.  Cass  County,  193  111.  439 259 

Heine  v.  Levee  Com'rs,  19  Wall.  (U.  S.)  655 209 

Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  592 214,  232 

Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  150 219 

Henkel  v.  Detroit,  49  Mich.  249 259 

Henly  Lumber  Co.  v.  Morris,  33  Wash.  490 258 

Hennington  v.  Georgia,  163  U.  S.  299 357 

Henny,  etc.,  Co.  v.  Evans,  97  Mo.  47 360 

Hess  V.  Werts,  4  S.  &  R.   (Pa.)    361 157 

Heyward  v.  New  York,  7  N.  Y.  314 257 

Hibben  v.  Smith,  191  U.  S.  310 35,  37,  58,  72,  73,  81,  242 

Highland  Boy  Gold  Mining  Co.  v.  Strickley,  116  Fed.  Rep.  852. .   276 

Hilton  V.  Merritt,  110  U.  S.  97 242 

Hodge  V.  Muscatine  County,  196  U.  S.  276 235,  236,  241,  363 

Hodgson  V.  Vermont,  168  U.  S.  272 163 

Hoeft  V.  Supreme  Lodge,  etc.,  113  Cal.  91 156 

Hohorst,  7w  re,  150  U.  S.  663 103 

Hoke  V.  Henderson,  4  Dev.  L.   ( 15  N.  Car.)    1 30,  52,     68 

Holbrook  v.  Finney,  4  Mass.  568 158 

Holden  v.  Hardy,  169  U.  S.  306 22,  38,  40,  56,  306,  308,  347 

Holden  V.  Minnesota,  137  U.  S.  495 169 

Holly  River  Coal  Co.  v.  Howell,  36  W.  Va.  489 23*4 

Holmes  r.  Hunt,  122  Mass.  505 180 

Holt  V.  Somerville,  127  Mass.  408 297 

Home  Ins.  Co.  v.  Morse,  20  Wall.  (U.  S.)   445 95 

Heme  Ins.  Co.  v.  New  York,  134  U.  S.  594 210 

Hooker  v.  Los  Angeles,  188  U.  S.  314 76,  160 

Hooper  v.   California,    155  U.   S.   648 101 

Hopkins  v.  Orr,  124  U.  S.  510 96 

Hopt  V.  Utah,  110  U.  S.  574 147,  148,  160,  166 

Hovey  v.  Elliot,  167  U.  S.  409 3,  27,  51,  70,  85,  171 


TABLE   OF   CASES   CITED.  39 1 

PAGE 

Howard  v.  Fleming,  191  U.  S.  126 168 

Howard  v.  Moot,  64  N.  Y.  268 182 

Howell  V.  Manglesdorf,  33  Kan.  194 98 

HuHng  V.  Kaw  Valley  R.,  etc.,  Co.,  130  U.  S.  559 114 

Hunt  V.  Hunt,  72  N.  Y.  218 123 

Huntington  v.  Attrill,  146  U.  S.  657 136 

Hurst  V.  Warner,  102  Mich.  238 347 

Hurtado  v.  California,  110  U.  S.  516 

2,  5,  28,  31,  32,  34,  51,  54,  56,  57,  59,  163 

Huse  V.  Glover,  119  U.  S.  543 341 

Hutton  V.  Camden,  39  N.  J.  L.  122 374 

Hyde  Park  v.  Oalavoods  Cemetery  Assoc.,  119  III.  141 254 


Illinois  Cent.  R.  Co,  v.  Decatur,  147  U.  S.  190 202 

Indiana  Natural,  etc.,  Gas  Co.  v.  State,  158  Ind.  516 317 

Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438 317 

Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.  447....    170 
Interstate  Commerce  Commission  i\  Cincinnati,  etc.,  R.  Co.,  167 

U.  S.  469 319,  320 

Iowa  Cent.  R.  Co.  v.  Iowa,  160  U.  S.  389 38,  39,  40,     41 

Irrigation  Dist.  v.  Williams,  76  Gal.  360 273 


J. 

Jackson  r.  Wood,  2  Cow.  (N.  Y.)  819 18 

Jacobs,  Matter  of,  98  N.  Y.  98 140,  308,  356 

Jacobson  v.  Massachusetts,  197  U.  S.  11 140,  304,  306,  344 

James  v.  Bowman,  190  U.  S.  127 43 

James  Clark  Distilling  Co.  v.  Cumberland,  95  Md.  474 99 

Japanese  Immigrant  Case,  189  U.  S.  86 190,  191,  193 

John  Hancock  Mut.  L.  Ins.  Go.  v.  Warren,  181  U.  S.  73 185,  332 

Johnson  v.  Chicago,  etc..  Elevator  Co.,  119  U.  S.  388 96 

Johnson  v.  Clayton  County,   61   Iowa  89 264 

Johnson  v.  Powers,  139  U.  S.   159 112 

John  Spry  Lumber  Co.  V.  Sault  Sav.  Bank,  etc.,  Co.,  77  Mich. 

199    360 

Johnston  v.  Rankin,  70  N.  Car.  550 280,  281 

Jones  V.  Brim,  165  U.  S.  180 62,  187,  305,  342 

Jones  V.  Great  Southern  Fire  Proof  Hotel  Co.,  58  U.  S.  App. 

397,  86  Fed.  Rep.  371 360 

Jones  V.   Jones,  108  K  Y.  415 124 

rourneny  r.  Gibson,  56  Pa.  St.  57 158 


392  TABLE   OF   CASES   CITED. 

K.  PAGE 

Kauffman  v.  Wooters,  138  U.  S.  285 93 

Kaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  142 

U.  S.  254 23,  270,  283,  285,  286 

Kehrer  v.  Stewart,  197  U.  S.  60 217 

Kelley  v.  Rhoads,   188  U.  S.   1 221 

Kelly  V.  Pittsburgh,  104  U.  S.  78 19,  214,  228,  233 

Kemmler,  In  re,  136  U.  S.  436 33,  35,  36,  169 

Kemper-Thomas  Paper  Co.  v.  Shyer,  108  Tenn.  450 92,  115 

Kendall  v.  Kingston,  5  Mass.  524 180 

Kennard  v.  Louisiana,  92  LI.  S.  480 335 

Kent  V.  Gray,  53  N.  H.   576 160 

Kentucky  v.  Dennison,  24  How.    (U.  S.)    66 137 

Kentucky  Pvailroad  Tax  Cases,   115  U.   S.  321 

82,  84,  210,  215,  238,  241,  245 

Ker  V.  Illinois,   1 19  U.  S.   436 137 

Keyser  v.  Rice.  47  Md.  203 106 

Kidd  V.  Alabama,   188  U.   S.   730 223 

Kidd  V.  Pearson,   128  U.   S.   1 337,  346 

Kilboum  v.  Thompson,  103  U.  S.  168 69 

King  V.  Cross,  175  U.  S.  396 121 

King  V.  Hayes.  80  Me.   206 377 

King  V.  Mullins,  171  U.  S.  404 37,  233,  235 

King  V.  Portland,  184  U.   S.   61 247 

Kingman,  Petitioner,   153  Mass.   560 259 

Kingman   r.  Paulson,   126   Ind.  507 96 

Kingsland  v.  New  York,  110  N.  Y.  569 258 

Kinney,  Ex  p.,  3  Hughes   (U.  S.)   9 136 

Kirtland  v.  Hotchkiss,  100  U.  S.  491 37,  215,  221 

Knowlton  v.  Moore,  178  U.  S.  41 208,  222,  223 

Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13 355 

Knoxville  Water  Co.  v.  Knoxville,  189  U.  S.  434 305 

Kohl  V.  Lehlbaek,  160  U.  S.  297 168,  169 

Kohl  u.  U.  S.,  91  U.  S.  367 253,  257 

Kollock,  In  re,  165  U.  S.  536 349 

Kosciusko  V.   Slomberg,   68  Miss.   449 347 

Koshkonong  v.  Burton,  104  U.  S.  668 171 

Kring  v.  Missouri,  107  U.  S.  221 147,  159 

Krug,  In  re,  79  Fed.  Rep.  308 38 


Lacey,  Ex  p.,  108  Cal.  326 203 

Lafayette  Ins.  Co.  v.  French,  18  How.   (U.  S.)  404 

75,  91,  101,  102,  103 

Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  173  U.  S.  285 306,  340 


TABLE   OF   CASES   CITED.  393 

PAGE 

Lake  Shore,  etc.,  R.  Co.  v.  Smith,  173  U.  S.  684 189,  320,  327 

Lambert  v.  Barrett,  157  U.  S.  697,  159  U.  S.  660 169 

Larsen  v.  Dickey,  39  Neb.  463 182 

Lascelles  v.  Georgia,  148  U.  S.  537 137 

Lau  Ow  Bew  v.  U.  S.,  144  U.  S.  47 194 

Lavin  v.  Emigrant  Industrial  Sav.  Bank,  18  Blatchf.  (U.  S.)  1. . 

86,     88 

Lawler  v.  Baring  Boom  Co.,  56  Me.  443 258 

Lawton  v.  Steele,  152  U.  S.  133 300,  308,  310,  330,  375,  377 

League  v.  Texas,  184  U.  S.  156 155,  157,  160,  234 

Leak  V.  Gay,  107  N.  Car.  468 177 

Leeds  v.  Richmond,  102  Ind.  372 259 

Lee  Gon  Yung  t".  U.  S.,  185  U.  S.  306 194 

Leep  V.  St.  Louis,  etc.,  R.  Co.,  58  Ark.  407 356 

Leeper  v.  Texas,  139  U.  S.  462 61,  80,   168 

Legal  Tender  Cases,  12  Wall.    (U.  S.)   457 142,  153 

Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388 40,  152 

Leigh  V.  Green,  193  U.  S.  79 Ill,  117,  233,  240,  241 

Leloup  V.  Port  of  Mobile,  127  U.  S.  640 217 

Lem  Moon  Sing  r.  U.  S.,  158  U.  S.  538 192,  194 

Lent  V.  Tillson,  140  U.  S.  316 58,  239,  241 

Le  Roy  v.  Champion,  1  Sid.  14,  2  Sid.  97 75 

Levasser  v.  Washburn,  11   Gratt.    (Va.)    572 234 

Lewis  V.  V.  S.,  146  U.  S.  372 54,  165 

L'Hote  V.  New  Orleans,  177  U.  S.  587 305,  306,  339,  346 

License  Cases,  5  How.    (U.  S.)    504 302 

Lieberman  v.  Van  De  Carr,  199  U.  S.  552 73 

Lindsay  V.  Anniston.   104  Ala.   261 317 

Little  Rock,  etc.,  R.  Co.  v.  Payne,  33  Ark.  816 185 

Lochner  v.  New  York,  198  U.  S.  45 63,  356 

Loesch  V.  Koehler,    144  Ind.  278 374,  377 

Logan  V.  Stogsdale,  123  Ind.  372 264 

Logan  V.  U.  S.,  144  U.  S.  263 42,  43,     45 

Lombard  v.  West  Chicago  Park  Com'rs,  181  U.  S.  33 254 

London's  Case,  8  Coke  12.5ffl 24 

Long  r.  Fuller,  G8  Pa.  St.   170 257 

Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685 

.' 81,  259,  282,  299 

Look  Ting  Sing,  In  re,  10  Sawy.   (U.  S.)   353 195 

Lottery  Case,   188  U.  S.  321 346 

Loughborough  V.  Blake,  5  Wheat.    (U.  S.)   317 200 

Louisiana  v.  New  Orleans,   109  U.   S.  285 150,  212 

Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  188  U.  S.  385 122,  218.  219 

Louisville,  etc.,  R.  Co.  v.  Barber  Asphalt  Pav.  Co.,   197   U.   S. 

430 '. 247,  248 


394 


TABLE  OF   CASES  CITED. 


PAGE 

Louisville,  etc.,  E.  Co.  v.  Kentucky,  183  U.  S.  503 319,  365,  370 

Louisville,  etc.,  R.  Co.  V.  Schmidt,  177  U.  S.  230.  .  .39,  77,  82,  160,  161 

Lowe  V.  Kansas,  163  U.  S.  81 54,  62,  160,  179,  180 

Lowell  V.  Boston,  111  Mass.  454 228,  229,  265 

Luxton  V.  North  River  Bridge  Co.,  153  U.  S.  525 285 

Lynch  v.  Forbes,  161  Mass.  302 259,  275,  297 

Lyude  v.  Lynde,  181  U.  S.  183. . 123,  126 


M. 

McAllister  v.  State,  72  Md.  390 349 

McCandlish  v.  Com.,  76  Va.  1002 337 

McClure  v.  Maitland,  24  W.  Va.  561 234 

McCracken  v.  Hay^va^d,  2  How.   (U.  S.)  008 .  .150,  176 

McCray  v.  U.  S.,'l95  U.  S.  27 208,  217 

McCreery  v.  Davis,  44  S.  Car.  195 124 

McCulloch  V.  MaiTland,  4  Wheat.   (U.  S.)   316 208,  217 

McEldowney  v.  Wyatt,  44  W.  Va.  711 174 

McFadden  v.  Evans-Snider-Buel  Co.,  185  U.  S.  505 158 

McGahey  v.  Virginia,  135  U.  S.  662 172,  175 

McKane  v.  Durston,  153  U.  S.  684 81,  169 

McMillen  v.  Anderson,  95  U.  S.  37 80,  178,  234,  241 

McNeeley,  Ex  p.,  36  W.  Va.  84 136 

McMtt  V.  Turner,  16  Wall.  (U.  S.)  366 89 

McNulty  V.  California,  149  U.  S.  648 163 

Madisonville  Traction  Co.  v.  St.  Bernard  Min.  Co.,   196  U.  S. 

2.52    282 

Magoun  v.  Illinois  Trust,  etc..  Bank,  170  U.  S.  283 222 

Mahon  V.  Justice,  127  U.  S.  700 137 

Maier,  Ex  p.,  103  Cal.  476 181 

Main  v.  Messner,  17  Oregon  78 130,  132 

Maleverer  v.  Spinke,  1  Dyer  366 205 

Mallett  V.  North  Carolina,  181   U.  S.  589 147 

Manigault  v.  Springs,  199  U.  S.  473.... 259,  293,  294,  300,  301,  304 

Manning,  In  re,  139  U.  S.  506 168 

Manning  v.  Spurck.  ]  99  111.  450 122 

March  v.  Eastern  R.  Co.,  40  X.  H.  577 105 

Marshall  v.  McDaniel,  12  Bush    (Ky.)    378 234 

Martin,  Ex  p.,  13  Ark.  199 281 

Martin  v.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  686 95 

Martindale  v.  Moore,  3   Blackf.    (Ind.)    282 143 

Marvin  v.  Trout,  199  U.  S.  212 162,  338,  343 

Marx  V.  Hanthorn,  148  U.  S.  172,  30  Fed.  Rep.  585 180,  182 

Mary,  Tlie.  9  Cranch   (U.  S.)    144 109.  Ill 

Mar\'e  v.  Baltimore,  etc.,  R.  Co.,  127  U.  S.  117 225 


TABLE  OF  CASES  CITED.  395 

PAGE 

Mason  v.  Messenger,  17  Iowa  261 24 

Massachusetts  v.  Western  Union  Tel.  Co.,  141  U.  S.  40 224 

Massie  v.  Watts,  6  Cranch   (U.  S.)    148 106 

Mattingly  v.  District  of  Columbia,  97  U.  S.  687 247 

Maxwell  i;.  Dow,  176  U.  S.  581 5,  22,  32,  34,  59,  163 

MaxAvell  v.  Goetschius,  40  N.  J.  L.  391 23 

Maynard  v.  Hill,  125  U.  S.  210 124 

Medley,  Petitioner,  134  U.  S.  160 147 

Merchant  v.  Pennsylvania  R.  Co.,  153  U.  S.  380 296 

Merchants',  etc.,  Bank  v.  Pennsylvania,  167  U.  S.  461 237,  239 

Merchants'  Nat.  Bank  v.  U.  S.,  101  U.  S.  1 208 

Meriwether  r.  Garrett,  102  U.  S.  472 209,  212 

Metropolitan  St.  R.  Co.  v.  Tax  Com'rs,  199  U.  S.  1 . . .  .212,  227,  228 

Mexican  Cent.  R.  Co.  v.  Pinkney,  149  U.  S.  194 93,  103 

Meyer  V.  Berlandi,  39  Minn.  438 360 

Meyer  r.  Richmond,  172  U.  S.  82 289,  295 

Mial  r.  Ellington,  134  N.  Car.  131 333 

Michigan  Ins.  Co.  V.  Eldred,  130  U.  S.  693 171 

Middlebrooks  V.  Springfield  F.  Ins.  Co.,  14  Conn.  301 101 

Miller  v.  Dennett,  6  N.  H.  109 158 

Miller  v.  Horton,   152  Mass.  540 310,  374 

Miller  v.  Miller,   16  Mass.  59 158 

Miller  v.  Texas,  153  U.  S.  535 107 

Millett  V.  People,   117  111.  294 61,  356 

Mills  V.  U.  S.,  46  Fed.  Rep.  738 294 

Milwaukee,  etc.,  R.  Co.  v.  Faribault,  23  Minn.  167 277 

Milwaukee  Industrial  School  v.  Milwaukee  County,  40  Wis.  328..   344 

Minneapolis,  etc.,  R.  Co.  v.  Beckwith,  129  U.  S.  26 313 

Minneapolis,  etc.,  R.  Co.  V.  Emmons,  149  U.  S.  364 342 

Minneapolis,  etc.,  R.  Co.  V.  Minnesota,   193  U.  S.  53 306 

Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593 313 

Mississippi,  etc..  Boom  Co.  v.  Patterson,  98  U.  S.  403 275,  290 

Missouri  v.  Lewis,   101   U.   S.   22 38 

Missouri,  etc.,  R.  Co.  v.  Haber,  169  U.  S.  618 304 

Missouri,  etc.,  R.  Co.  v.  May,  194  U.  S.  267 312,  342 

Missouri,  etc.,  R.  Co.  f.  Simonson,   64   Kan.   802.... 182,  185 

Missouri  Pac.  R.  Co.  v.  Humes,   115  U.   S.  512 37.  313,  342 

Missouri  Pac.  R.  Co.  v.  Mackey,  127  U.  S.  205 312,  342 

Missouri  Pac.  R.  Co.  V.  Nebraska.   164  U.   S.   403 68,  255,  269 

Mitchell  V.  Clark.   110  U.  S.  633 153 

Mobile  r.  Bienville  Water  Supply  Co.,  130  Ala.  379 317 

Mobile  V.  Yuille,  3  Ala.  137 316 

Mobile  County  v.  Kimball,  102  U.  S.  691 202.  215,  231 

Mobile,  etc..  R.  Co.  V.  Alabama  Midland  R.  Co.,  87  Ala.  501 278 

Mohr  r.  Manierre.  101  U.  S.  417 89 


396  TABLE   OF   CASES   CITED. 

PAGE 

Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.  312.  .278,  279,  287,  288,  290 

Montana  Co.  v.  St.  Louis  Min..  etc.,  Co.,  152  U.  S.  160 293 

Moore  v.  Huntington,  17  Wall.   (U.  S.)   417 96 

Moore  V.  Sanford,  151  Mass.  285 275 

Moore  v.  State,  43  N.  J.  L.  203 58,  143,   144,   149 

Moran  v.  Ross.  79  Cal.   159 254 

Moredoek  v.  Kirby.   118  Fed.  Rep.   182 97 

Morford  v.  Unger,  8  Iowa  82 232 

Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Healtli,  118  U.  S. 

455   304,  300.  339,  347 

Morley  v.  Lake  Shore,  etc.,  R.  Co.,  140  U.  S.  162 150,  329 

Morris  v.  Columbus,  102  Ga.  792 344 

Moimd  City  Land,  etc.,  Co.  v.  Millen,  170  Mo.  240 259,  265 

Mount  Hope  Cemetery  v.  Boston.  158  Mass.  509 285 

Mount  Washington  Road  Co.,  Petition  of,  35  N.  li.  134 281 

Mouse's  Case,  12  Coke  63 205 

Mugler  V.  Kansas,  123  U.  S.  623 

180,  181,  204,  308,  310,  330,  337,  340,  366,  371 

Mulligan  v.  Smith,  59  Cal.  206 30 

Munn  V.  Illinois,  94  U.  S.  113 19,  140,  314,  315.  316,  318 

Murphy  v.  Com..  172  Mass.  264 345 

Murphy  v.  :Maisachusetts,  177  U.  S.  155 169,  345 

Murphy  v.  Ramsey,  1 14  U.  S.  15 198 

Murray  v.  Charleston,  96  U.  S.  432 120 

Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.   (U.  S.)   272 

16,  26,  52,  53,  72.  162,  233 

N. 

Nashville,  etc.,  R.  Co.  r.  Alabama,  128  U.  S.  96 340 

Natal  V.  Louisiana,  139  U.  S.  621 347 

National  Cotton  Oil  Co.  V.  Texas,  197  U.  S.  115 37,  40,  358 

National  Exeh.  Bank  V.  Wiley,   195  U.  S.  257 87,     96 

Neagle,  Petitioner,  135  U.  S.  1 135 

Newark,  etc.,  Horse  Car  R.  Co.  v.  Hunt,  50  N.  J.  L,  312 366 

Newburyport  Water  Co.  v.  Newburyport,  193  U,  S.  577 332 

New  England  Mut.  L.  Ins.  Co.  v.  Woodworth,  111  U.  S.  146 105 

Now  Jersey  V.  Wilson,  7  Cranch    (U.  S.)    164 151 

New  Orleans  v.  Clark,  95  U.  S.  644 158 

New  Orleans  v.  Houston,  119  U.  S.  265 224 

New  Orleans  v.  New  Orleans  Water  Works  Co.,  142  U,  S.  79..   328 

New  Orleans  V.  Stempel,  175  U.  S.  309 119,  120,  222 

New  Orleans  City,  etc.,  R.  Co.  v.  New  Orleans,  143  U.  S,  192. .  .   226 

New  Orleans,  etc.,.  R.  Co,  v.  Louisiana,  157  U,  S.  219 175 

New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U,  S,  650.  .304,  305 


TABLE  OF   CASES   CITED.  397 

PAGE 

New  Orleans  Gas  Light  Co.  v.  Drainage  Commission,  197  U.  S. 

453    341 

Newton  v.  Mahoning  County,  100  U.  S.  548 333 

New  York,  Matter  of,  135  N.  Y.  253 258,  271 

New  York  v.  Squire,   145  U.  S.  175 317,  340 

New  York  v.  Van  De  Carr,  188  U.  S.  552 347,  365 

New  York  Cent.  R.  Co.,  Matter  of,  66  N.  Y.  407 298 

New  York  El.  R.  Co.  v.  Fifth  Nat.  Bank,  135  U.  S.  432 290 

New  York,  etc.,  Grain,  etc.,  Exch.  v.  Board  of  Trade,  127  III.  153.  317 

New  York,  etc.,  R.  Co.  v.  Bristol,  151  U.  S.  556 37,  340 

New  York,  etc.,  R.  Co.  v.  Kip,  46  N.  Y.  546 258,  269 

New  York,  etc.,  R.  Co.  i'.  New  York,  165  U.  S.  628 371 

New  Y^ork  L.  Ins.  Co.  v.  Cravens,  178  U.  S.  399 185 

Niagara  Falls,  etc.,  R.  Co.,  In  re,  108  N.  Y.  375 2^7,  270,  275 

Nishiraura  Ekiu  y.  U.  S.,  142  U.  S.  659 190 

Nobles  V.  Georgia,  168  U.  S.  405 164 

Normal  School  Dist.  v.  Blodgett,  155  111.  441 16 

Norman  v.  Heist,  5  W.  &  S.  (Pa.)   171 68 

North  Dakota  v.  Nelson  County,  1  N.  Dak.  88 230 

Northern  Indiana  R.  Co.  v.  Michigan  Cent.  R.  Co.,  15  How.   (U. 

S. )    233    106 

Northern  Pac.  R.  Co.  v.  Ely,  197  U.  S.  1 173 

Northern  Pac.  R.  Co.  v.  Smith,  171  U.  S.  261,  275 276 

Northern  Pac.  R.  Co.  v.  Townsend,  190  U.  S.  267,  272 276 

Northern  Securities  Co.  «.  U.  S.,  193  U.  S.  197 358 

Northern  Transp.  Co.   v.  Chicago,  99  U.  S.  635 293,  295 

Northwestern  Fertilizer  Co.  v.  Hyde  Park,  97  U.  S.  659 336 

Norwood  t'.  Baker,  172  U.  S.  269 33,  202,  213,  249,  282 

O. 

O'Connor  v.  Pittsburgh,  18  Pa.  St.  187 295 

Ogden  V.  Saunders,  12  Wheat.   (U.  S.)   213 176 

O'Hare  i'.  Chicago,  etc.,  R.  Co.,  139  111.  151 276,  298 

Ohio  V.  Dollison.  194  U.  S.  445 72,  312 

Ohio  Oil  Co.  V.  Indiana,  177  U.  S.  100 331 

Old  Colony  R.  Co.,  Petitioner,  103  Mass.  356 297 

Old  Dominion  Steamship  Co.  r.  Virginia,  198  U.  S.  305 119 

Olmstead  v.  Camp,   33   Conn.   532 263,  264 

Olsen  V.  Smith,  195  U.  S.  332 37 

O'Neil  V.  Vermont,  144  U.  S.  323 18,  34,  168 

O'Reiley  v.  Kankakee  Valley  Drainage  Co.,  32  Ind.  169 271 

Oriert  Tns.  Co.  v.  Daggs,  172  U.  S.  557 56,  101.  102,  185 

Origrt  r.  Hedden.  155  U.  S.  228 242 

Orr  V.  Oilman,  183  U.  S.  278 222 


398  TABLE   OF  CASES  CITED. 

PAGE 

Otis  V.  Parker,  187  U.  S.  606 307,  346,  363 

Ouseley  v.  Lehigh  Valley  Trust,  etc.,  Co.,  84  Fed.  Rep.  602 94 


P. 

Packer  v.  Bird,  137  U.  S.  661 285 

Palmer  v.  McMahon,  133  U.  S.  660 80,  209,  237,  241 

Palmer  i:  Tingle,  55  Ohio   St.  423 360 

Pana  v.  Bowler,  107  U.  S.  529 89 

Parham  v.  Justices,   9  Ga.  341 281 

Parish  r.  East  Coast  Cedar  Co.,  133  N.  Car.  478 234 

Parkersburg,  etc.,  Transp.  Co.  v.  Parkersbvirg,  107  U.  S.  691.  . .  .   327 

Parsons  v.  District  of  Columbia,  170  U.  S.  45 248 

Pasadena  V.  Stirason,  91  Cal.  238 298 

Passavant  t\  U.  S.,  148  U.  S.  214 242 

Patterson  v.  Kentuclcr,   97   U.   S.  501 347 

Patterson  v.  The  Eudora,  190  U.  S.  169 354 

Paul  V.  Virginia,  8  Wall.   (U.  S.)   168 101 

Paulsen  v.  Portland,  149  U.  S.  30 83,  238,  239,  241,  248 

Paulson  V.  Portland,   16  Oregon  450 83 

Pearsall  v.  Great  Northern  R.  Co.,  161  U.  S.  673 143 

Pearson  V.  Yewdall,   95  U.   S.  296 299 

Pearson  v.  Zehr,  138  111.  48 374 

Peerce  v.  Kitzmiller,  19  W.  Va.  564 151,  162 

Peik  V.  Chicago,  etc.,  R.  Co.,  94  U.  S.  164 318 

Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  125  U.  S. 

181   102,  189 

Penn  v.  Baltimore,  1  Ves.  444,  2  White  &  T.  Lead.  Cas.  (4th  Am. 

ed.)    1800    106 

Pennic  v.  Reis,  132  U.  S.  464 328 

Pennoyer  v.  Neff,  95  U.  S.  714 

52,  58,  59,  85,  89,  90,  91,  94,  95,  100,  106,  109,  112,  122 

Pennsylvania  R.  Co.  V.  Miller,  132  U.  S.  75 295 

People  V.  Adirondack  R.  Co.,  160  N.  Y.  225 297,  299 

People  V.  Arensberg,  105  N.  Y.  123 349 

People  V.  Baker,  76  X.  Y.  78 124 

People  V.  Beattie,  96  N.  Y.  App.  Div.  383 356 

People  V.  Board  of  Health,  140  N.  Y.   1 373,  374 

People  V.  Boston,  etc..  R.  Co.,  70  N.  Y.  569 340 

People  V.  Brooklyn,  4  N.  Y.  419 209,  213,  283 

People  V.  Burke,  11  Wend.  (N.  Y.)   129 136 

People  V.  Cannon,  139  N.  Y.  32 181 

People  V.  Ewer,   141    N.   Y.    129 347 

People  V.  Greene,  85  X.  Y.  App.  Div.  400 311 

People  V.  Hayes,  140  N.  Y".  484 147 


TABLE  OF  CASES  CITED.  399 

PAGE 

People  V.  Hurlbut,  24  Mich.  63 71 

People  V.  Kerr,  27  N.  Y.  188 284 

People  V.  King,  110  N.  Y.  418 317 

People  V.  Marx,  99  N.  Y.  377 140,  349 

People  V.  Merrill,  2  Park.  Crim.    (N.  Y.)   590 136 

People  V.  Piatt,  17  Johns.   (N.  Y.)    195,  212 281 

People  V.  Salem,  20  Mich.  452 229 

People  V.  Simon,  176  111.  165 117 

People  V.  Smith,  21  N.  Y.  595 297 

People  V.  Township   Board,   20  Mich.   452 257 

People  v.  Turner,  117  N.  Y.  227 182 

People  V.  Van  De  Carr,  178  N.  Y.  425 333 

Perrj'  v.  Keene,  56  N.  H.  514 230 

Petit  V.  Minnesota,  177  U.  S.  164 357 

Pettibone  v.  U.  S.,  148  U.  S.  197 135 

Phelps  V.  McDonald,  99  U.  S.  298 106 

Philadelphia,  etc.,  R.  Co.  v.  Maryland,  10  How.  (U.  S.)  376 226 

Philadelphia  F.  Assoc,  v.  New  York,  119  U.  S.  1 10 189 

Picquet  V.  Swan,  5  Mason   (U.  S.)   35 75,  87,     89 

Pillow  V.  Roberts,  13  How.   (U.  S.)   472 180 

Piqua  Branch  of  State  Bank  v.  Knoop,  16  How.   (U.  S.)   369 226 

Pittsburg,  etc.,  R.  Co.  v.  Benwood  Iron  Works,  31  W.  Va.  710.  . .  270 

Pittsburgh  v.  Scott,  1  Pa.  St.  309 258 

Pittsburgh,  etc.,  Coal  Co.  v.  Bates,  156  U.  S.  577 220 

Pittsburgh,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  421 

63,  81,  211,  224,  225,  237,  239 

Pittsburgh,  etc.,  R.  Co.  v.  Board  of  Public  Works,  172  U.  S.  45. .  241 

Plessy  V.  Ferguson,  163  U.  S.  550 306,  308 

Plumley  V.  Massachusetts,  155  U.  S.  461 349 

Pollock  V.  Farmers'  Loan,  etc.,  Co.,  157  U.  S.  429 '217 

Potter  V.  Brown,  5  East  124 132 

Potts  V.  Breen,  167  111.  67 344 

Powell  V.  Pennsylvania,  127  U.  S.  677 140,  306,  349 

Powers,  Matter  of,  29  Mich.  504 298 

Powers  r.  Chesapeake,  etc.,  R.  Co.,  169  U.  S.  98 95 

Prerogative  of  the  King,   12  Coke  13 205 

Presser  v.  Hlinois,  116  U.  S.  252 34 

Protector  v.  Colchester,  Style  447 75 

Providence  Bank  v.  Billings,  4  Pet.   (U.  S.)   514 226 

Provident  Sav.  Inst.  V.  Jersey  City,  113  U.  S.  506.  .152,  176,  249,  359 

Public  Clearing  House  v.  Coyne,  194  U.  S.  497 80,  369 

Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18 

119,  120,  217,  218,  224,  225 

Pumpelly  v.  Green  Bay,  etc.,  Canal  Co.,  13  Wall.  (U.  S.)  166. . .  292 


400  TABLE   OF   CASES   CITED. 


R.  PAGE 

Railroad  Commission  Cases,  116  U.  S.  307 805,  319 

Raleigh  v.  Pearee,  110  N.  Car.  32 213 

Raleigh,  etc.,  R.  Co.  v.  Davis,  2  Dev.  &  B.  L.  19  (X.  Car.)  451.  .  .    280 

Ralli  V.  Troop,  157  U.  S.  405 205 

Ralya  Market  Co.  v.  Armour,  102  Fed.  Rep.  530 100 

Ramsey  v.  People,   142  III.  380 356 

Randall  v.  Kreiger,  23  Wall.   (U.  S.)    137 157,  158 

Rassmussen  v.  U.  S.,  197  U.  S.  516 197,  198,  200 

Raverty  v.  Fridge,  3  McLean    (U.  S.)   230 158 

Reagan  r.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362 303,  305,  320,  324 

Receiver  of  State  Bank  v.  Plainfield  First  Nat.  Bank,  34  X.  J.  Eq. 

450    131. 

Red  River  Valley  Nat.  Bank  v.  Craig,  181  U.  S.  548 175 

Rees  V.  Watertown,  19  Wall.  (U.  S.)    107 82,  212 

Reetz  V.  Michigan,  188  U.  S.  505 

52,  73,  80,  81,  84,  1G3,  303,  336,  347,  371 

Reid  V.  Colorado,  187  U.  S.  137 304 

Rcinach  v.  Atlantic,  etc..  R.  Co.,  58  Fed.  Rep.  43 89 

Renaud  v.  Abbott,  116  U.  S.  277 97 

Respublica  r.  Sparhawk,  1  Dall.  (Pa.)  357 205 

Rex  V.  Cambridge  University,  1  Stra.  558 2,     75 

Rex  V.  Oxford,  Palmer  453 75 

Rhode  Island  Suburban  R.  Co.,  /n  re,  22  R.  I.  455 255 

Rich  V.  Flanders,  39  N.  H.  304 180 

Richmond,  etc.,  R.  Co.  V.  Richmond,  96  U.  S.  521 151,  203 

Rideout  v.  Knox,  148  Mass.  368 310 

Ridgeway  r.  West,  60  Ind.  371 337 

Riggins,  Ex  p.,  134  Fed.  Rep.  404 36,  45,     46 

Riggins  v.V.  S.,  199  U.  S.  547 47 

Riglander  v.  Star  Co.,  98  N.  Y.  App.  Div.  101 71 

Rigney  v.  Rigney,  127  N.  Y.  408 126 

Road  in  Plumcreek  Tp.,  In  re,  110  Pa.  St.  544 264 

Robards  v.  Lamb,  127  U.  S.  58 161 

Robertson,  In  re,  156  U.  S.  183 168 

Robertson  v.  Baldwin,  165  U.  S.  275 353 

Rochester  V.  West,  164  N.  Y.  510 311 

Rochester,  etc.,  R.  Co.,  Matter  of,  110  N.  Y.   119 269,  270 

Roderigas  V.  East  River  Sav.  Inst.,  63  N.  Y.  460,  76  N.  Y.  316.  .      88 

Rogers  v.  Peck,  199  U.  S.  425 164,   169 

Roller  V.  Holly,   176  U.  S.  398 39,  79,   114,  115 

Rolph  t\  Fargo.  7  N.  Dak.  640 202 

Rose  V.  Hunely,  4  Cranch   (U.  S.)  241 88 

Rousillon  V.  Rousillon,  14  Ch.  D.  370 94 


TABLE   OF   CASES   CITED.  401 

PAGE 

Koyall  V.  Virginia,  116  U.  S.  572 364 

Ruhstrat  v.  People,  185  111.  133 333 

Russell  V.  New  York,  2  Den.  (N.  Y.)  461 205 

Ryan  v.  Louisville,  etc.,  Terminal  Co.,  102  Tenn.  Ill 275 

Ryers,  Matter  of,  72  N.  Y.  1 259,  265 

Ryerson  v.  Brown,  35  Mich.  333 264,  273,  277 

S. 

St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water  Com'rs, 

168  U.  S.  366 286 

St.  Clair  v.  Cox,  106  U.  S.  356 102,  103 

St.  Joseph  Tp.  V.  Rogers,  16  Wall.   (U.  S.)    644 158 

St.  Louis  I'.  Myers,  113  U.  S.  566 285 

St.  Louis  V.  Russell,   116  Mo.  248. 365 

St.  Louis  V.  Rutz,  138  U.  S.  226 285 

St.  Louis  V.  Western  Union  Tel.  Co.,  148  U.  S.  92 284 

St.  Louis,  etc.,  R.  Co.  v.  Gill,  156  U.  S.  649 320,  322,  378 

St.  Louis,  etc.,  R.  Co.  v.  Matthews,   165  U.  S.  1 186,  342 

St.  Louis,  etc.,  R.  Co.  v.  Paul,  173  U.  S.  404 349,  350 

St.  Paul,  etc.,  R.  Co.,  Matter  of,  34  Minn.  227 298 

Salem  v.  Eastern  R.  Co.,  OS  Mass.  431 . : 373 

Sand  Creek  Lateral  Irrigation  Co.  v.  Davis,  17  Colo.  326 298 

San  Diego  Land,  etc.,  Co.  v.  Jasper,  189  U.  S.  439 323 

San  Diego  Land,  etc.,  Co.  v.  National  City,  174  U.  S.  739 

33,  282,  317,  320,  323,  324,  325,  378 

San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  556 378 

Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288 341,  367 

San  Francisco,  etc.,  R.  Co.  v.  Leviston,  134  Cal.  412 298 

San  Mateo  County  v.  Southern  Pac.  R.  Co.,  116  U.  S.  138 22 

Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  18  Fed.  Rep.  385.  .      21 

Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  118  U.  S.  394 189 

Saranac  Land,  etc.,  Co.  v.  Comptroller,  177  U.  S.  318 182 

Satterlee  v.  Matthewson,  2  Pet.    (U.  S.)   380 149,  151,  152 

Savannah  v.  Hancock,  91  Mo.  54 256 

Savannah,  etc.,  R.  Co.  v.  Savannah,  198  U.  S.  392 212 

Savin.  Petitioner,  131  U.  S.  267 169,  170 

Savin<Ts,  etc.,  Soc.  v.  IMultnomah  County,  169  U.  S.  421 220 

Sawyer  r.  Piper,  189  U.  S.  154 161 

Schauble  v.  Schulz,  137  Fed.  Rep.  389 172 

Schollenberger.  Ex  p.,  Q6  V.  S.  369 102,  105 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1 304,  349 

Schuster  r.  Sanitary  Dist.,   177  111.  626 208 

Schwab  V.  Berggren,  143  U.  S.  442 167 

Scott  r.  McNeal,  154  U.  S.  34 28,  39,  51,  52,     88 


402  TABLE   OF   CASES   CITED. 

PAGE 

Scott  V.  Toledo,  36  Fed.  Rep.  3S5 252 

Scottish  Union,  etc.,  Ins.  Co.  v.  Bowland,  196  U.  S.  611 233 

Scranton  v.  Wheeler,  179  U.  S.  141 293 

Scranton  Gas,  etc.,  Co.  v.  Northern  Coal,  etc.,  Co.,  192  Pa.  St. 

80    277 

Scribner  v.  Fisher,  2  Gray  (Mass.)  43 132 

Scudder  v.  Trenton  Delaware  Falls  Co.,  1  N.  J.  Eq.  694 264 

Searl  v.  School  Dist.  No.  2,  133  U.  S.  553 253 

Sears  v.  Cottrell,  5  Mich.  251 61 

Seattle  V.  Kelleher,   195  U.   S.   351 247 

Secombe,  Ex  p.,  19  How.   (U.  S.)    9 171 

Secombe  t'.  Milwaukee,  etc.,  R.  Co.,  23  ^Yall.   (U.  S.)    108..  .254,  257 

Security  Trust  Co.  v.  Dodd,  173  U.  S.  628 131 

Sentell  v.  New  Orleans,  etc.,  R.  Co.,  166  U.  S.  705 330 

Sexton  V.  California,  189  U.  S.  319 135 

Shaffer  V.  Union  Min.  Co.,  55  Md.  74 356 

Shank  v.  Smith,  157  Ind.  401 73 

Sharon  v.  Tucker,  144  U.  S.  533 173 

Sharp  V.  U.  S.,  191  U.  S.  341 291 

Shawhan  v.  Wherritt,  T  How.   ( U.  S. )   643 131 

Shepard  v.  Barron,  194  U.  S.  553 252 

Shively  v.  Bowlby,  152  U.  S.  1 285 

Shoemaker  v.  U.  S.,  147  U.  S.  282 260,  275,  288,  290 

Shumate  v.  Henian,   181    U.   S.  402 251 

Simmons  v.  Saul,  138  U.  S.  439 89 

Simon  v.  Craft,  182  U.  S.  436 39.  76,  77,  160,  344,  371 

Simpson  v.  State,  92  Ga.  41 135 

Sims,  In  re,  54  Kan.  1 164 

Sing  Lee,  Ex  p.,  96  Cal.  354 365 

Sinking  Fund  Cases,  99  U.  S.  700 153,  315 

Sinnickson  v.  Johnson,  17  N.  J.  L.  129 279 

Sioux  Falls  r.  Kiely,  6  S.  Dak.  62 365 

Skaneateles  Waterworks  Co.  V.  Skaneateles,  184  U.  S.  354.  , 332 

Slaughter-House  Cases.  16  Wall.   (U.  S.)  36.  .20,  22,  36,  138.  141,  347 

Smalley  v.  Gearing,  121  Mich.  190 360 

Smiley  v.  Kansas,  196  U.  S.  447 358 

Smith,  Matter  of,  146  N.  Y.  68 344,  347 

Smith  V.  Hancock,  Style  138 53 

Smith  V.  Newbaur,  144  Ind.  95 360 

Smyth  V.  Ames,  169  U.  S.  466 189,  320,  321,  322,  323,  324 

Snook  V.  Snetzer,  25  Ohio  St.  516 106 

Society,  etc.,  v.  Wheeler.  2  Gall.   (U.  S.)    105 146 

Soon  Hing  v.  Crowley,  113  U.  S.  703 312,  313,  345 

South  Carolina  v.  U.  S.,  199  U.  S.  437 223 

South  Carolina  R.  Co.  v.  Blake,  9  Rich.  L.  (S.  Car.)  228 298 


TABLE  OF  CASES  CITED.  403 

PAGE 

Southern  Illinois,  etc.,  Bridge  Co.  v.  Stone,  174  Mo.  1 258 

Southern  Pac.  K.  Co.  v.  Board  of  Railroad  Com'rs,  78  Fed,  Rep. 

261    325 

Southern  Pac.  R.  Co.  v.  Denton,  146  U.  S.  202 93 

Spencer  v.  Merchant,  125  U.  S.  345 213,  241,  248 

Spies  V.  Illinois,  123  U.  S.  131,  166 18,     34 

Springer  v.  U.  S.,  102  U.  S.  586 233 

Spring  Valley  Water  Works  v.  San  Mateo  Water  Works,  64  Cal. 

123    276 

Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347.  .73,  241,  317 

Springville  v.  Thomas,  166  U.  S.  707 200 

Stanislaus  County  v.  San  Joaquin,  etc.,  Canal,  etc.,  Co.,  192  U.  S. 

201    320 

State  V.  Addington,  77  Mo.  110 349 

State  V.  Associated  Press,   159  Mo,  410 315,  317 

State  V.  Beswick.  13  R.  I.  211 181 

State  V.  Brown,  etc.,  Mfg.  Co.,  IS  R.  I.  16 356 

State  V.  Burdge,  97  Wis.  390 344 

State  V.  Caldwell,   115  N.  Car,  794 135,  136 

State  V.  Campbell,  64  N.  H.  402 203 

State  V.  Central  New  Jersey  Telephone  Co.,  53  N.  J,  L.  341 257 

State  V.  Cutshall,  110  N.  Car.  552 136 

State  V.  Edwards,  86  Me.  105 316 

State  V.  Fire  Creek  Coal,  etc.,  Co.,  33  W.  Va,  188 355 

State  V.  Fiske,  9  R.  I.  94 365 

State  V.  Goodwill,  33  W.  Va.   179 355 

State  V.  Griffin,  69  N.  H.  1 204,  366 

State  V.  Griswold,  67  Conn.  290 188 

State  V.  Guilbert,  56  Ohio  St.  575 117 

State  V.  Hay,  126  N.  Car.  999 344 

State  V.  Hazelton,  etc.,  R.  Co.,  40  Ohio  St.  504 270 

State  V.  Height,  117  Iowa  650 188 

State  V.  Higgins.  13  R.  I.  330 181 

State  V.  Julow,  129  Mo.  163 139 

State  V.  Kartz,   13  R.  I.  528 181 

State  V.  Loomis,   115  Mo.  307 307,  355 

State  V.  Maine,  27  Conn.  641 257 

State  V.  Marshall,  64  N.  H.  549 349 

State  V.  Minnesota,  etc.,  R.  Co.,  76  Minn.  469,  479 340 

State  V.  Moore,  104  N.  Car.  714. 62,  348 

State  V.  Morrow,  40  S.  Car.  221 135 

State  V.  Newark,  27  N.  J.  L.  197 156 

State  V.  Newark,  37  N.  J.  L.  415 202,  213,  249 

State  V.  O'Connor,  3  Kan.  App.  594 188 

State  V.  Peel  Splint  Coal  Co.,  36  W.  Va,  802 356 


404  TABLE  OF  CASES  CITED. 

PAGE 

State  V.  Polk  County,  87  Minn.  325 259 

State  V.  Rapp,    39   Minn.   05 274 

State  t:  Stewart,   74   Wis.   020 259 

State  V.  Summerfield,  107  N.  Car.  895 303 

State  V.  Tenant,  110  N.  Car.  609 303 

State  V.  Tliomas,  47  Conn.  546 181 

State  Railroad  Tax  Cases,  92  U.  S.  575.  .63,  84,  120,  209,  210,  215,  224 
State  Tax  on  Foreign  Held  Bonds,  15  Wall.   (U.  S.)    300..  .119,  209 

Stearns  v.  Barre,  73  Vt.  281 259,  275 

Sterling  v.  Littlefield,  97  Me.  479 371 

Stevens  v.  Nichols,  157  U.  S.  370 161 

Stockton  V.  Baltimore,  etc.,  R.  Co.,  32  Fed.  Rep.  19 254,  285 

Stockton  V.  Central  R.  Co.,  50  N.  J.  Eq.  52 259 

Stockton,  etc.,  R.  Co.  v.  Stockton,  41  Cal.  147 271 

Stone  V.  Heath,  179  Mass.  385 373 

Stone  V.  Mississippi,   101   U.   S.   814 304,  336,  346 

Stone  V.  Wisconsin,   94  U.   S.    181 318 

Story  V.  New  York  El.  R.  Co.,  90  N.  Y.  122 284 

Stoudinger  v.  Newark,  28  N.  J.  Eq.  187 259 

Strain  v.  Chicago  Portrait  Co.,  126  Fed.  Rep.  831 104 

Stratton  v.  Morris,  89  Tenn.  497 62,     63 

Streitwolf  v.  Streitwolf,  181  U.  S.  179 122 

Strode  v.  Washer,  17  Oregon  53 182 

Stuart  V.  Palmer,  74  N.  Y.  183 82 

Sturges  V.  Crowninshield,  4  Wheat.   (U.  S.)    122 133,  150,   176 

Sugg  V.  Thornton,  132  U.  S.  524 92,  100 

Sully  V.  American  Nat.  Bank,  178  U.  S.  289 190 

Swan  V.  Williams,  2  Mich.  427 271 

Sweeny  V.  Hunter,  145  Pa.  St.  363 361 

Sweet'v.  Rechel.  159  U.  S.  380 205,  206,  259,  291 

Swift  V.  U.  S.,  196  U.  S.  375 358 


T. 

Tabor  v.  Ward,  83  N.  Car.  291 160 

Talbot  V.  Hudson,   16  Gray   (Mass.)    417 263,  269,  271,  273 

Talton  V.  Mayes,  163  U.  S.  376 163 

Tappan  v.  Merchants'  Nat.  Bank,  19  Wall.   (U.  S.)   490 119,  120 

Tay  V.  Hawley.  39  Cal.  96 100 

Taylor  v.  Beckham,  178  U.  S.  548 333.  334.  335 

Taylor  V.  Columbian  Ins.  Co.,  14  Allen  (Mass.)   353 133 

Taylor  7'.  Porter,  4  Hill   (N.  Y.)    140 68,  264 

Tennessee  v.  Sneed,  96  U.  S.  69 175 

Tennessee  v.  Whitworth.  1 17  U.  S.  129 224 

Terry,  Ex  j>.,  128  U.  S.  289 80,  169 


TABLE  OF  CASES  CITED.  405 

PAGE 

Terry  v.  Anderson,  95  U.  S.  628 171,  173 

Thaw  V.  Ritchie,  130  U.  S.  519 89 

Thomson  v.  Lee  County,  3  Wall.   (U.  S.)   327 158 

Thompson  r.  Missouri,   171   U.  S.  380 147 

Thompson  v.  Perrine,  103  U.  S.  806 158 

Thompson  v.  Utah,  170  U.  S.  343 5,  147,  200 

Thompson  v.  Whitman,   18  Wall.    (U.  S.)    457 87 

Thorington  v.  Montgomery,  147  U.  S.  490 101 

Thormann  v.  Frame,    176  U.   S.   350 87 

Thorpe  v.  Rutland,  etc.,  R.  Co.,  27  Vt.  140 203 

Tide  Water  Co.  v.  Coster,  18  N.  J.  Eq.  518 249 

Tindal  v.  Wesley,  167  U.  S.  204 282 

Tinsley  v.  Anderson,  171  U,  S.   101 169,  170 

Title  Guarantee,  etc.,  Co.  v.  Wren,  35  Oregon  62 360 

Tivan,  In  re,  5  B.  &  S.  679,  117  E.  C.  L.  679 134 

Toltec  Ranch  Co.  v.  Cook,  191  U.  S.  532 173 

Tonawanda  v.  Lyon,   181   U.   S.  389 251,  252 

To^^^lsend,  Matter  of,  39  N.  Y.  171 271 

To\vnsend  v.  Jemison,  9  How.  (U.  S.)   407 171,  173 

Tracy  v.  Elizabethtown,  etc.,  R.  Co.,  80  Ky.  259,  266 278,  298 

Trenton,   etc..    Turnpike   Co.    V.   American,    etc.,    News    Co.,    43 

N.  J.  L.  381 257 

Trono  f .  U.  S.,  199  U.  S.  521 1 65 

Tullis  V.  Lake  Erie,  etc.,  R.  Co.,  175  U.  S.  348 313 

Turlock  Irrigation  Dist.  v.  Williams,  76  Cal.  360 266 

Turner  v.  New  York.  168  U.  S.  90 172.  1 82 

Turpin  v.  Lemon,  187  U.  S.  57 180,  182,  238,  239 

Tuthill,  Matter  of,  163  N.  Y.  133 255,  263,  265 

Tuttle  V.  Moore,  3  Indian  Ter.  712 256.  263 

TAventy-third  St.  R.  Co.  v.  Tax  Com'rs,  199  U.  S.  53 227 

Tyler  r.  Beecher,  44  Vt.  648 264 

Tj'ler  V.  Judges,  175  Mass.  71 113,  117 

Tj'ler  V.  People,  8  ]\Iich.  "20 135 

U. 

L^nderwood  r.  Bailey.  59   N.   H.   480 264 

Underwood  r.  Green,  42  N.  Y.   1 40 374 

Underwood  ?;.  People.  32  Mich.   1 344 

Union  Refrigerator  Transit  Co.  r.  Kentucky,   199  U.  S.   194... 

119,  202,  218 

U.  S.  V.  Alexander,  148  U.  S.  187 295 

U.  S.  V,  Baltimore,  etc.,  R.  Co.,  17  Wall.   (U.  S.)  322 217 

U.  S.  V.  Clintock,  5  Wheat.    (U.  S.)    144 134 

U.  S.  V.  Cruikshank,  1  Woods  (U.  S.)   308,  92  U.  S.  542 

36,   42,   43,  51 


406  TABLE   OF  CASES   CITED. 

PAGE 

U.  S.  V.  Erie  R.  Co.,  107  U.  S.  1 237 

U.  S.  V.  Furlong,  5  Wheat.    (U.  S.)    184 134 

U.  S.  V.  Gettysburg  Electric  R.  Co.,  160  U.  S.  668 256,  261,  289 

U.  S.  V.  Great  Falls  IVIfg.  Co.,  112  U.  S.  645 259 

U.  S.  V.  Hall,  2  Wash.    (U.  S.)    366 147 

U.  S.  V.  Harris,  106  U.  S.  629 43,  44,     46 

U.  S.  V.  Hitchcock,  190  U.  S.  324 369 

U.  S.  V.  Jones,  109  U.  S.  513 279 

U.  S.  V.  Ju  Toy,  198  U.  S.  253 190,  191,  193,  194,  197 

U.  S.  V.  Moore,  129  Fed.  Rep.  630 36 

U.  S.  V.  New  Orleans,  98  U.  S.  381 212 

U.  S.  V.  Perkins,   163  U.  S.  625 222 

U.  S.  V.  Philadelphia,  etc.,  R.  Co.,  123  U.  S.  113 237 

U.  S.  V.  Rickert,  188  U.  S.  438 217 

U.  S.  V.  Sing  Tuck,  194  U.  S.  161 191,  196,  197 

U.  S.  V.  Smith,  5  Wheat.  (U.  S.)  153 134 

U.  S.  V.  Truesdale,  148  U.   S.   196 295 

U.  S.  V.  Union  Pac.  R.  Co.,  160  U.  S.  1 153 

U.  S.  V.  Ward,  Woolw.    (U.  S.)    17 134 

U.  S.  V.  Williams,  194  U.  S.  279 190,  193 

U.  S.  V.  Wong  Kim  Ark.  109  U.  S.  649 192,  195,  196 

U.  S.  V.  Yamasaka,  100  Fed.  Rep.  404 193 


V. 

Vallee  v.  Dumergue,  4  Exch.  290 94 

Van  Brocklin  v.  Tennessee,  117  U.  S.  151 217 

Vance  v.  Vance,  108  U.  S.  514 172 

Vanzant  v.  Waddel.  2  Yerg.    (Tenn.)    260 62 

Varner  v.  Martin,  21  W.  Va.  534 256,  264 

Veazie  Bank  v.  Fenno,  8  Wall.   (U.  S.)    533 208 

Vicksburg.  etc.,  R.  Co.  v.  Dennis,  116  U.  S.  665 226 

Virginia,  Ex  p.,  100  U.  S.  339 27,  43 

Virginia  v.  Rives,  100  U.  S.  313 43 

Voght  V.  State,  124  Ind.  358 181,  182 

Voigt  V.  Detroit,  184  U.  S.  115 241,  245 

Von  Hoffman  v.  Quincy,  4  Wall.  (U.  S.)  535 152,  175 

W. 

W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452 351 

Wahash  R.  Co.  v.  Defiance,  167  U.  S.  88 304 

Wabash  Western  R.  Co.  v.  Brow,  164  U.  S.  271 103 

Waite,  Matter  of.  99  N.  Y'.  433 131 

Waite  V.  Santa  Cruz,  184  U.  S.  302 62 


TABLE  OF  CASES   CITED.  4O7 

PAGE 

Walker  v.  Sauvinet,  92  U.  S.  90 37,  102 

Wall,  Ex  p.,  107  U.  S.  265 51,  52,  53,  54,  59,  171 

Wallace  V.  Wallace,  62  N.  J.  Eq.  509 122,  125 

Walston  r.  Nevin,   128  U.  S.  578 247,  248 

Wantlan  v.  White,   19  Ind.  470 182,   185 

Ward  V.  Maryland,  12  Wall.   (U.  S.)  418 217 

Warren  i\Ifg.  Co.  v.  Etna  Ins.  Co.,  2  Paine  (U.  S.)  501 154 

Waterbury  v.  Newton,  50  N.  J.  L.  534 349 

Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28 332 

Watson  V.  Mercer,  8  Pet.   (U.  S.)    110 151,  155 

Wayman  v.  Southard,  10  Wheat.  (U.  S.)    1 69,     70 

Webb  V.  Den,  17  How.   (U.  S.)   576 180 

Webster  v.  Fargo,  9  N.  Dak.  208,  181  U.  S.  394 202,  251 

Webster  v.  Reid,  11  How.   (U.  S.)   437 89 

Weed  V.  Binghamton,  26  Misc.    (N.  Y. )    208 144 

Weidenfeld  v.  Sugar  Run  R.  Co.,  48  Fed.  Rep.  615 270 

Weimer  V.  Bunbury,  30  Mich.  201 52 

Wells  V.  Savannah,  181  U.  S.  531 226 

Welton  V.  Missouri,  91  U.  S.  275 220 

West  V.  Louisiana,  194  U,  S.  258 160,  161 

Western  Union  Tel.  Co.  V.  Atty.-Gen.,  125  U.  S.  530 224 

Western  Union  Tel.  Co.  v.  Missouri,    190  U.  S.  412 225,  246 

Western  Union  Tel.  Co.  V.  Myatt.  98  Fed.  Rep.  335 164,  370 

Western  Union  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  540. . 

' 258,  284 

Western  Union  Tel.  Co.  v.  Taggart,   163  U.  S.   1 224,  225 

Weston  V.  Charleston,  2  Pet.   (U.  S.)   466 217 

West  River  Bridge  Co.  v.  Dix,  6  How.   (U.  S.)  507 254 

Weyerhaueser  r.  Minnesota,  176  U.  S.  550 211,  241,  245 

Wheeler  v.  Jackson,  137  U.  S.  245 172 

Wight  V.  Davidson,  181  U.  S.  371 251,  252 

Wild  r.  Serpen,  10  Gratt.    (Va.)    405 234 

Wilkins  v.  Ellett,  9  Wall.    (U.  S.)    740 121 

Williams  V.  Eggleston,   170  U.   S.  304 213 

Williams  V.  Fears,  179  U.  S.  270 314,  344 

Williams  V.  Parker,  188  U.  S.  491 262,  271,  291 

Williams  r.  School  Dist.  No.  6,  33  Vt.  271 257 

Willyard  v.  Hamilton.  7  Ohio  (pt.  2)    111 257 

Wilson  r.  Alabama  G.  S.  R.  Co.,  77  Miss.  714 347 

Wilson  V.  Eureka  City,  173  U.  S.  32 365 

Wilson  V.  Haney,  24  N.  H.  344 172 

Wilson  V.  Iseminger,  185  U.  S.  55 172 

Wilson  V.  Joseph,  107  Ind.  490 106 

Wilson  V.  Lambert,  168  U.  S.  611 230,  232 

Wilson  V.  North  Carolina,  169  N.  Car.  586 162,  167,  335 


408  TABLE   OF   CASES   CITED. 

PAGE 

Wilson  V.  Seligman,  144  U.  S.  41 89,  98 

Wilson  V.  Standefer,  184  U.  S.  399 77,  227 

Wilson  Packing  Co.  v.  Huntern,  8  Biss.    (U.  S.)   429 105 

Windsor  v.  McVeigh,  93  U.  S.  274 7(i,  85,  109 

Winona,  etc.,  Land  Co.  v.  Minnesota,  159  U.  S.  526 211,  238,  241 

Winona,  etc.,  R.  Co.  V.  Blake,  94  U.  S.  180 318 

Winston  v.  Winston,  189  U.  S.  507 122 

Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265 88,  136 

Wisconsin  Cent.  R.  Co.  v.  Kneale,  70  Wis.  89 298 

Wisconsin  Cent.  R.  Co.  v.  Price  County,  133  U.  S.  496 217 

Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  179  U.  S.  287 340 

Wise  V.  Withers,  3  Cranch    (U.  S.)    331 88 

Wong  Kim  Ark,  In  re,  71  Fed.  Rep.  382 195 

Wong  Wing  f.  U.  S.,  163  U.  S.  228 189,   192,  193 

Woodruff  V.  Taylor.  20  Vt.  65 85 

Wormley  v.  District  of  Columbia.  181   U.  S.  402 251 

Wurts  V.  Hoagland,  114  U.  S.  606,  614 265,  266 

Wyllie,  In  re,  2  Hughes   ( U.  S. )   449 153 

Wyman  v.  Halstead,  109  U.  S.  656 121 

Wynehamer  v.  People,  13  N.  Y.  378 68,  141 

Y. 

Yarbrough,  Ex  p.,  110  U.  S.  651 43 

Yates  r.  Milwaukee,  10  Wall.   (U.  S.)   497 374 

Yesler  v.  Washington  Harbor  Line  Com'rs,  146  U.  S.  646 

61,  282,  295 

Yick  Wo  V.  Hopkins,  118  U.  S.  356 28,  61,  142,  189,  192,  306,  307 

Y^ork  V.  Texas,  137  U.  S.  15 ; 93,  160 

Young,  Matter  of,  123  N.  Car.  358 116 


Z. 

Zeigler  v.  South,  etc.,  Alabama  R.  Co.,  58  Ala.  594 68,  185 

Zimmerman  v.  Franke,  34  Kan.  650 106 


INDEX. 


Acknoxpledgments  —  PAGE 

Acts   curing   defective 158  note 

Administration  — 

Grant  of  letters  treated  as  in  rem 117,  118 

Issuance  of  letters  on  absentee's  estate  as  absentee 88 

Issuance  of  letters  on  estate  of  absentee  as  decedent 88 

Settlement  of  special  administrator  without  giving  bond.  .  .  161 

Situs  of  debts  for 121 

Administrative    officers  — 

See  Separation  of  Govebnmental  Powers. 

Action  of  limited  by  due  process 28 

Charged  with  carrying  out  details  of  police  regulation 303 

Judicial  duties  intrusted  to 72,  245,  366 

May  administer  laws  excluding  aliens 190 

May  determine  qualification  of  physician 163 

May  determine  question  of  sanity 163 

May  determine  whether  applicant  for  admission  an  alien. .  .  194 

Notice  and  hearing  required  when  rates  fixed  by 319 

Proceedings  before  as  due  process  of  law. .  .72,  163,  190,  233,  366 

Statutes  making  decisions  by  heads  of  departments  final ....  369 

Administrator  — 

See  Administration. 

Advertising  — 

Use  of  property  for 310 

iEsthetic  considerations  — 

Whether  justify  employment  of  eminent  domain 261 

Whether  justify  police  power 310 

Agent  — 

To  receive  service  for  foreign  corporation 101,  103 

To  receive  service  for  individual 93 

Alaska  — 

Entitled  to  all  constitutional  guaranties 200 

Alien  — 

Administrative  officer  may  determine  when  person  entering 

country  is  citizen  or 195 

Cannot  claim  judicial  process  before  entry 190 

[409] 


4IO 


INDEX. 


Alien  —  Continued.  page 

Congress  may  regulate  admission  of 190 

Effect  of  departure  from  country 193 

Entitled  to  due  process 190 

Exclusion  of,  by  administrative  officials  due  process 191 

Exclusion  of,  held  not  reviewable 191 

Rightfully  admitted  are  protected  as  are  citizens 191 

Unlawful  entry  confers  no  rights 192 

Unlawful  entry  not  punishable  infamously 193 

Almshouses  — 

Acquisition  of  property  for,  a  public  purpose 257 

Amendments  to  Constitution  of  United  States  — 

Adoption  of  first  ten 17 

Resulting  from   Civil   War 19 

Scope  of  first  ten 18 

Whether  first  eight  extend  to  inhabitants  of  acquired  ter- 
ritory      197 

Whether  rights  enumerated  in  first  eight  essential  for  due 

process ^0 

Amendments  to  pleading  — 

Right  to  amend  denied 161 

Amusement  — 

Regulation  of  places  of  public 317 

Animals  — 

See  Cattle;  Dogs. 

Property  in  animals  ferw  naturce 330 

Property  in  reclaimed  animals 330 

Whether  killing  diseased  is  a  taking  of  property 310 

Appeal  — 

Dismissed  for  prison  breach 1G8 

Not  essential  to  due  process 81,  169,  211 

Provision  for,  a  local  question SI 

Appearance  — 

Special   appearance 93 

Effect  of  state  statute  regulating,  in  federal  courts .  .  93  note 

Statute  regulating  effect  of 93 

Voluntary   gives   jurisdiction 93 

Voluntary  validates  divorce 123,  126 

Apportionment  of  taxes  — 

See  Taxation. 

Appraisement  — 

Of  imports    242 


INDEX.  411 

Armoriei  —  PAOE 

Acquisition  of  property  for,  a  public  purpose 257 

Arsenals  — 

Acquisition  of  property  for,  a  public  purpose 257 

Jurisdiction  of  United  States  over  lands  reserved  for 134 

Within  states  entitled  to  all  constitutional  guaranties 200 

Arundel,   Earl  of  ^ 

Attainder    65 

Assessment  — 

See  Reassessment;  Special  Assessments. 

Of  railroads  by  board  of  equalization 83,     84 

Proper  classification  for  in  taxation 63 

Assignment  — 

Statute  forbidding,  to  nonresidents 361 

Assignment  for  benefit  of  creditors  — 

Valid  where  made,  valid  everywhere 131  note 

Attachment  — 

Against  debtor's  property  is  in  rem 109 

No  personal  judgment  in  without  personal  service 112 

Right  may  be  taken  away  if  legal  remedy  remains 175  note 

Situs  of  debts  for 121 

When  in  rem  or  in  personam Ill 

Attainder,  bills  of  — 

As  violating  vested  rights 146 

History    64,     65 

Prohibited  by  Constitution 67 

Atterbury,   Bisbop  — 

Bill  of  pains  and  penalties  against 67 

Attorney  at  laxv^  — 

Disbarment  and  suspension 171 

Rights  in  profession  of 335 

Attorneys'  fees  — 

Exacted    of    railroads    as    penalty    for    non-settlement    of 

claims   350 

Railroads  required  to  pay,  in  suits  for  damage  by  fire 351 

Validity  of  judgment  confessed  for  in  sister  state 96 

Anstin  — 

On  vested  rights 142  note.  144  note,  156  note 

Bakers  — 

Business  of  affected  with  public  interest 316  note 

Statute  limiting  hours  of  employment 356 

Banking  associations  — 

Statute  repealing  statute  avoiding  notes  of 156  note 


412 


INDEX. 


Bankrupt  and  insolvent  laws  —  PAGE 

In  England  discharge  under,  valid  everywhere 132  note 

Judgments  under  both  in  rem  and  in  personam 130 

Judgment  under  in  personam  as  discharge 131 

Judgment  under  in  rem  as  to  status  of  debtor 131 

Power  of  state  to  pass 132 

Retrospective  state  insolvency  laws 176 

Beauty  — 

Education  of  taste  for  as  ground  for  taking  property 261,  310 

Bills    of   attainder  — 

See  Attainder,  Bills  of. 

Bills  of  pains  and  penalties  — 

See  Attainder,  Bills  of. 
Defined    64 

Blackstone  — 

On  ex  post  facto  laws 149  note 

Blood-feud     85    note 

Bonds  — 

Issuance  in  excess  of  value  as  affecting  rates 324 

Situs  of  foreign  held  for  taxation 119 

Booms  — 

Acquisition  of  property  for,  a  public  purpose 258 

Bridge  — 

Acquisition  of  property  for,  a  public  purpose 257 

Railroad  required  to  build 340  note 

Taxation  of,  by  municipality 214 

Taxation  of,  situated  between  states 219  note 

Business  affected  with  public  interest^ 

As    practical    monopoly 315 

Instances  of    315 

Regulation  in  exercise  of  purely  legislative  powers 349 

Sir  Matthew  Hale  on 314 

Subject  to  police  regulation 314 

Canals  — 

Acquisition  of  property  for,  a  public  purpose 257 

Caroline,   Queen  — 

Bill  of  pains  and  penalties  against 67 

Carriers,   common  ^ 

See  Common  Carbieb. 

Carriers   of  passengers  — 

Made  liable  as  insurers 342 


INDEX.  413 

Cattle  —  PAGE 

Liability  of  owners  for  injury  to  highway 186,  342 

Straying  on  railroads  protected 312 

Cemeteries  ^ 

Acquisition  of  property  for,  a  public  purpose 259,  264 

Chattels  — 

See  Personal  Pbopebty. 

Children  — 

Employments   prohibited  to 347 

Imprisonment  of,  in  homes  and  reformatories 344 

Rights  of  regulated  in  their  own  interests 344 

Citizen  — 

Corporation  is  not 190 

Rights  of,  and  rights  of  alien 190 

Right  of,  to  resort  to  federal  courts 95 

Civil  cases  — • 

Right  to  jury  trial  in 162 

Civil  damage  acts  — 

Constitutionality  of   343  note 

Classification  — 

Must  be  based  on  real  difference 63 

Not  prohibited  by  due  process 62,     63 

Of  subjects  of  taxation 210,  211 

Under  the  police  power 311 

Clergyman  — 

Rights  in  profession  of    335 

Cloud  on  title  — 

See  Title. 

Color  blindness  — 

Railroads  to  bear  expense  of  examination  of  engineers  for. .   340 

Combinations  in  restraint  of  trade  — 

See  MoxopoLiES  and  Combixations. 

Comity  — 

See  Foreign  Corporations. 

As  applied  to  judgment  in  bankruptcy 131 

Situs  of  debts  dependent  on 121 

Commerce  — 

See  Interstate  Commerce. 

Regulation  of  belongs  to  national  government 304 

United  States  may  condemn  land  for  purposes  of 285 


414 


INDEX. 


Common  carrier—  faoe 

See  Railkoads. 

Business  of  aflfected  with  public  interest 316 

Statute  making  carrier  of  passengers  an  insurer 342 

Compensation  — 

See  Eminent  Domain;  Paramount  Rights  of  State; 
Police  Power. 
Condemnation  — 

See  Eminent  Domain. 

Con£rmatio  cartarum    6 

Confiscatory  legislation  — 

See  Attainder,  Bills  of;  Ex  Post  Facto  Laws;  For- 
feiture. 

In  civil  cases,  violates  due  process 68 

Opposed  to  due  process 64 

Conflict  of  laws  — 

See  Situs. 
Congress  — 

Legislative  powers  under  Fourteenth  Amendment 42-47 

Consequential  damage  — 

Denial  of  right  to,  no  denial  of  due  process 295 

Destruction  of  access  to  land,  as 293 

Constitution  of  United  States  ^ 

Whether  it  follows  the  tiag 197  note 

Construction  and  interpretation  — 

By  state  courts  — 

Errors  and  irregularities  in  construction 40 

Of  meaning  of  state  constitution  and  statutes  final.  .37,  38 

On  matters  of  procedure  usually  a  local  question.  .  .37,  40 

On  presence  of  due  process,  reviewable 37 

E.xisting  laws  a  part  of  contract 152 

Grant  of  eminent  domain  limited  to  necessity  of  case 277 

Provision  for  "  hearing  "  construed 242 

Retrospective    construction    avoided 154 

Constructive  service  — 

See  Process,  Service  of. 
Contempt  — 

Notice  and  hearing  essential  in  indirect 170 

Notice  and  hearing  not  essential  in  direct 169 

Power  of  courts  to  punish 169 

Proceedings  to   punish   for 169 

Striking  out  defendant's  answer  as  punishment  for 170 

Summary  process  against 170 


INDEX.  415 

Contingency  —  P^°^ 

Distinguished  from  vested  right 157 

Contracts  — 

See  Impairment  of  Obligation  of  Contbacts. 

State  may  not  regulate  extraterritorial  contracts 351 

Cooley,  Judge  Thomas  M.*  — 

On  vested  rights ^'^^ 

Corporations  — 

See    Foreign    Cq-eporations;    Master    and    Servant; 
Process,  Service  of;  Railroads. 

Are  not  citizens 1^" 

Are  persons  under  the  Fourteenth  Amendment 189 

Enforcement    from    gwost-public,    of    duty    common    to    all 


citizens 


350 


Grants  to,  protected  by  Federal  Constitution 151 

Reservation  of  right  to  repeal  charter 332 

Taxation  of  223 

Costs  — 

Confession  of  judgment  for,  on  judgment-note 96 

Imposed  as  penalty  for  malicious  prosecution 179 

Imposed  for  nonpayment  of  taxes 233 

Imposed  on  railroads  as  penalty  for  fire 351 

Council  — 

See  King's  Council. 

County  seats  — 

Passenger  trains  required  to  stop  at 316  note 

Court  houses  — 

Acquisition  of  property  for,  a  public  purpose 257 

Courts  — 

See  Tribunal. 
Crimes  and  penalties  — 

See  Procedure. 
Criminal  laws  not  extraterritorial 133 

Seeming  exceptions  to  rule  — 

Exclusive  jurisdiction  reserved  to  United  States..    134 

Extraterritorial  crime  in  fraud  of  state  laws 136 

Extraterritorial  crime  offense  against  sovereignty  of 


state 


135 


Extraterritorial  crime  taking  effect  In  state 135 

Foreign   penal  laws  not  enforced 136 

1 00 
Jurisdiction  as  to 

Right     of     person     accused     of    felony    to    be     present    at 

trial    58,   165,  167 

Right  to  jury  trial  in  criminal  cases 163 


4l6  INDEX. 

Cromwell  —  page 

Attainted  after  death 66  note 

Curative  acts  — 

Cannot  affect  vested  rights  of  third  parties 158 

Validity   of 156,  158 

Cnstom  lionses  — 

Acquisition  of  property  for,  a  public  purpose 257 

Dam  — 

Maintenance  of   as   nuisance 23 

Damage  — 

Requirement  of  compensation  when  property  "  damaged  " . .   295 

Dangerous  employments  — 

See  Police  Power. 
Dangerous  substances  — 

Traffic  in   regulated 346 

Debt  — 

See  Situs. 
Situs  of  special  and  simple  distinguished 121 

Declaration  of  Independence  — 

Enumeration  of  inalienable  rights  in 138 

Deeds  — 

Presumption  from 180,  182 

Defamation  — 

In  pleadings  held  privileged 161 

Defense  — 

Right  to  present  not  denied  where  none  is  asserted 161 

Departments  of  government  — 

See  Separation  of  Governmental  Powers. 

Deposition  — 

Of   absent   witness   held   admissible 161 

Depots  — 

See  Railroads. 
Acquisition  of  property  for,  a  public  purpose 258 

Despencers  — 

Attainder  of    65 

Dickinson  — 

On  ex  post  facto  laws 149 

Dike  — 

Acquisition  of  property  for,  a  public  purpose 259 

Consequential  damage  from  construction  of 293 

Discretion  — 

Exercise  of  by  administrative  officials 72,  366 


INDEX.  417 

Oiscrimination  —  PAGE 

See  Classification. 

Distributive  justice    51  note 

District  of  Columbia  — 

Entitled  to  all  oonstitutional  guaranties 200 

Ditch  — 

Over  another's  land  to  obtain  water,  whether  public  purpose.  266 

Divorce  decrees  — 

Douiicil  of  parties  determines  jurisdiction 122 

In  state  of  fraudulent  domicil 122 

In  state  where  both  parties  domiciled 122,  126 

In  state  where  neither  party  domiciled 122 

In  state  where  one  party  domiciled 123,  127 

Results  of  Atherton  v.  Atherton 129 

Results  of  Haddock  v.  Haddock iv 

Validity  of   decree   on   constructive   service   as   against 

nonresident    127-130 

Whether  in  rem  or  in  personam 122 

Dogs  — 

Property    rights    in 330 

Domicil  — 

See  Divorce  Decrees. 

When  wife  may  acquire  separate 123 

Dower  — 

Expectancy  of  not  vested 158 

Drainage  — 

Acquisition  of  property  in  cities  for,  a  public  purpose 259 

As  involving  eminent  domain  and  police  power 205 

Constitutionality  of  acts  condemning  property  for 265 

Druggists  — 

Double  license  required  from,  for  sale  of  spirits 364 

Due  process  of  laiv  — 

See  Equality  and  Generality  of  Laws;  Jurisdic- 
tion; Law  of  the  Land;  Persons  Protected  by 
Due  Process;  States;  United  States. 

Absorbs  other  conceptions 16,     49 

Analogous  phrases  in  early  writs 1  note 

Becomes    fundamental     part     of     American     constitutional 

law     3,     17 

Definition    and   description 1 

By  Sir  Edward  Coke 15 

Emphasizing  absence  of  arbitrary  caprice 51 

Emphasizing  necessity   of   jurisdiction 52 

27 


4l8  INDEX. 

Due  process  of  law  —  Continued.  PAOB 

Definition  and  description  —  Continued. 

Emphasizing  necessity  of  orderly  procedure 51 

In  Parliamentary  debates 15 

Webster's  definition    49-51 

Different  in  the  several   states 38 

Earliest  uses  of  phrases 1  note,     65 

Elements  and  requisites  — 

Appeal  not  essential  to 81 

Compensation   for  property   condemned  essential 279 

Depend  on   subject-matter   involved 59 

Exclude  arbitrary   exercise   of   power 61 

Judge   acting    in    his    own    case 57,     58 

Judicial  process  not  essential 52 

Jury  trial  is  not  essential 53,  162,  233,  371 

Equivalent  phrases  in  state  constitutions 23 

Identity  of  under  Fifth   and   Fourteenth   Amendments   as- 
sumed          35 

In  Fifth  Amendment  of  Federal  Constitution 17 

In  Fifth  and  Fourteenth  Amendments  compared 31,     32 

In  fourteenth  century  statutes 8-10 

In  various  legal  systems 2 

Presence    of,    presents    federal    question    under    Fourteenth 

Amendment    37 

Scope  of  guaranty  — 

In     America     restricts     all     departments     of     govern- 
ment       26 

In  England   nmnicipalities  restricted  by 25 

In   England   Parliament   not   restricted   by 25 

In  England  restricts  king  and  executive 20-24 

Tests  of  presence  — 

By  gradual   process   of   inclusion   and   exclusion 56 

Conformity   to    established    usages 53-56 

Too  narrow  as  test 54 

Conformity    with    fundamental    principles 56-60 

Easements  — 

Subject  to  eminent  domain 283 

Elevators,  grain  — 

See  Grain  Elevators 
Emblems  — 

Regulation  of  use  of  state  emblems 333 

Eminent  domain  — 

See  Necessity;    Paramount  Rights  of  State;   Tak- 
ing OF  Property. 
A  sovereign  power 253 


INDEX.  4^9 

Eminent  domain  — Co /i<j/uicd.  PAGE 

Compensation  — 

A  principle  of  natural  equity 278 

Can     be     claimed     only     when     property     rights     in- 
fringed      283 

Constitutional   recognition  of  necessity  for 279 

Denial  of  right  to  consequential  damages,  no  denial  of.  .   295 

Effect  of  appropriating  limited  amount  for 288 

Elements  to  be  considered   in  estimating 289 

For     subjecting     condemned     property     to     additional 

servitude    284 

History  of  requirement  of 278 

How    amount    of    estimated 289 

Just  compensation  a  judicial  question 286 

Need  not  precede  taking 291 

Required  by  due  process  of  law 202,  279 

Requirement  for  when  lands  "  damaged  " 295 

Requirement   for   when    lands    "taken" 295 

Right  of  state  to,  where  its  property  is  taken 284 

Right  to  may  be  lost  by  laches 282 

Substantial  denial  by  state  courts  raises  federal  ques- 
tion     282 

Where  one  of  two  tracts  is  taken 290 

VV^here  part  only  of  tract  is  taken 290 

Where  the  use  of  property  is  limited 291 

Condemnation  and  voluntary  sale  contrasted 202  note 

Exercisable   by   legislature 254 

Grant  of,  no  estoppel  to  new  grant 254 

Notice  and  hearing  — 

Decision  on  compensation  requires 299 

Doctrine  in  Massachusetts  as  to 297 

Right  to,  where  legislative  decision   delegated 297 

Right  to,  where  legislature  decides  directly 297 

Of  states  and  of  United  States 253 

Of  United  States  is  paramount 253 

Proceeding  for,  against  nonresident  is  in  rem 113 

Property  subject  to  — 

Federal  government  may  condemn  state's  property.  .283,  284 

Franchise  to  collect  tolls 287 

Lands  held  by  state  in   trust  for  national  purposes..   284 

Lands  imder  water 285 

Tilings    already    condemned 284 

What  may  be  taken 283 

Public  purposes  — 

Courts  may  supervise  legislative  decision  of  question..  256 
Criterion  stated 262 


420  INDEX. 

ZSminent  domain  —  Continued.  FAQE 

Public  purposes  —  Continued. 

Determined  primarily  by  legislature 255 

Enterprises   subsidiary   to   main   purpose 269 

Held  equivalent  to  "  public  benefit " 263 

Held  to  require  state  ownership  and  control 263 

Incidental  benefit  for  state  does  not  aifect 270 

Incidental  private  benefit  does  not  affect 270 

Local  conditions  influence 266 

May  be  local  merely 271 

Necessary  to  due  process 255 

Taking  for  purposes  purely  private  forbidden 269 

Various  purposes  enumerated 257 

Whether    purposes   purely   aesthetic    justify   condemna- 
tion        261 

Taking   of   property   involves 205 

Term    derived    from    Grotius 253 

Value    of    rights    involved    may    determine   between    police 

power  and  206 

Engineers  — 

Expense  for  physical  examination  of,  imposed  on  railroada.   340 

Entry   of  judgment  — 

See  Judgments. 

Equality  and  generality  of  laxrs  — ' 

See  Classification;   Confiscatoby  Legislation. 

Essential    to   due   process 60-64 

Exclusive  or  separate  emoluments  prohibited 62 

Equality  of  taxes  — 

Under   Fourt^'onth   Amendment 210 

Equal  protection  of  laxrs  — 

See  Equalit\'  and  Generality  of  Laws. 
Guaranteed  by  Fourteenth   Amendment 62,  311 

Equity  — 

Abatement  of  nuisance  in,  is  due  process 371 

May  control  extraterritorial  property  and  rights 105 

Escape  — 

Of  prisoner  ground  for  dismissal  of  appeal 168 

Escheat  — 

Proceeding  to  is  in  rem 114 

Estoppel  — 

Presumption  made  conclusive  on  principle  of 184 


INDEX.  421 

Evidence  —  page 

See  Pbesumptions. 

Included   in   procedure 159 

No  vested  right  in  rules  of 160 

Rules  and  effects  of,  legislative  power  over 180 

Rules  of,  may  be  retrospective 180 

Use  of,  illegally  obtained 187 

Execution  — 

See  Exemptions  from  Execution. 

Laws    extending    time    of 176 

Laws  limiting  right  to  sell  under 176 

Personal  not  issued  in  suit  merely  in  rem 112 

Executive  — 

See  Administrative   Officers;    Separation   of   Gov- 
ernmental Powers. 

Executors  and  administrators  — 

See  Administration. 

Exemptions  from  execution  — 

Laws  creating  and  modifying 176 

Exemptions  from  taxation  — 

Held  contractual  in  nature 226 

Legislature  may  create 210 

Of  underground  street  railroad 211,  212 

Strictly  construed   226 

Expectancies  — 

Distinguished  from  vested  rights 157 

Expenses  — 

Caused  by  public  works  held  consequential 293 

Explosives  — 

Traffic    in,    regulated 347 

Ex  post  facto  la'ws  — 

Blackstone  on    149  note 

Declared  not  confined  to  crimes  only 149  note,  152  note 

Dickinson  on    149 

Prohibited  by  constitution 67 

What  are   146,  148 

Laws  affecting  procedure  only  as 147 

Laws  mitigating  crime  or  punishment  as 147 

Laws  remitting  separable  portion  of  punishment  as. .  ..   147 
Express  companies  — 

Mileage  as  basis  of  taxation  of 225 

Extradition  — 

International    and    interstate 136,  137 


422  INDEX. 

Farriers  —  PAGE 

Statute  regulating  trade  of 356 

Fearne  — 

On  vested  rights 143 

Federal  bill  of  rights  — 

First  eight  amendments  to  Federal  Constitution  known  as. .     30 

Fee  tail  — 

Expectancy  of  heir  not  vested 157 

Statute  changing  to  fee  simple 157  note 

Fellotir  servants  — 

Railroads  deprived  of  benefit  of  fellow-servant  rule.... 312,  342 

Fences,  spite  — 

Whether  regulation  is  a  taking  of  property 309 

Fenwick,  Sir  J.  — 

Attainder  of   67 

Ferry  — 

Acquisition  of  property  for,  a  public  purpose 258 

As  a  business  affected  with  public  interest 316 

Taxation  of  franchise  for,  between  states 218 

Fictitious  capitalization  — 

As  affecting  rates 324 

Fifth  Amendment  ^ 

Construction    of     19 

Contents  of  17 

Due  process  under,  contrasted  with  that  under  Fourteenth 

Amendment    31,     32 

Provides   for  due   process 17 

Right   of   person   accused   of   felony   to   be   present  at   trial 

under   " 58,  165-167 

Fires  — 

Caused  by  railroads,  costs  as  penalty  in  suits  for 351 

Statutes  regulating  railroads'  liability  for 185,  342 

Fish   nets  — 

Destruction  of,  by  game  warden  in  advance  of  hearing....   376 

Fitzgerald,  Lord  Zdxrard  — 

Attainted   after  death 66  note 

Five  Knights  — 

Case  of    12,     14 

Flag- 

Laws    regulating   use    of 333 

Flooding  — 

Consequential    damage    from    flooding 293 


INDEX.  423 

Foreolosnre  —  page 

Proceeding  to  foreclose  mortgage  is  in  rem 109 

Poreign  corporationi  — 

Discrimination  against,  not  denial  of  due  process 189 

Not  citizens    101 

Rights  dependent  on   comity 101 

Service  on  agent  of,  valid  without  statute  — 

In  local  federal  courts 105 

In  state  courts    104 

State  may  annex  conditions  to  recognizing 97,  100 

State  regulation  of,  infringes  no  constitutional  right 332 

Statute  requiring  assent  to  specified  form  of  service 100 

Grounds  of  construction  of  such  statute 101 

Limitations  on  constitutionality  of 102 

Must  be  doing  business  in  state 102 

Must  not  impair  right  to  resort  to  federal  court..  102 

Must  not  include  federal   corporations 102 

Persons  served  must  represent  corporation 103 

Who  is  proper  agent  to  receive  service 103 

Validating  service  on  public  officer  in  default  of  desig- 
nation       101 

Validating  service  on  resident  officer  or  agent 101 

Forfeiture  — 

Of  property  for  nonpayment  of  taxes 234 

Proceeding  for,  against  property  of  rebels 110 

Forts  — 

Acquisition  of  property  for,  a  public  purpose 257 

Within  states  entitled  to  all  constitutional  guaranties 200 

Fonrteentli  Amendment  — 

See  Equal  Protection  of  Laws. 

Adoption  of 19 

All  classes  within  protection  of 20-22 

Application  of,  to  state  legislation  under  police  power 305 

Contents  of  the  first  section  of 20 

Equal    taxation   under 211 

Relation    of   the   rights   guaranteed   by    first   eight   amend- 
ments  to   due   process  under 30,   33,  34 

Restrains  state  action  through  its  agents 27 

Retrospective    application    of 22 

Franchise  — 

Corporate,  taxation  of   224 

Corporate,  within  contract  clause  of  Federal  Constitution..  151 

New  York  law  taxing 227 

Situs  of  for  taxation 121 

Subject  to  eminent  domain 283  note,  287 


424  INDEX. 

Fraud  —  PAGE 

Prevention  of,  as  ground  of  police  regulation 347,  348 

Freedom  of  contract  — 

Illegal   and   forbidden  contracts,   does  not  include  right  to 

make 345 

Included  in  "  liberty  "   and  "  property  " 140,  141 

In  purely  private  vocation  not  generally  subject  to  restraint.   356 

Not  infringed  by  mechanics'  lien  laws 359 

Not  infringed  by  statute  prohibiting   assignment  of   claim 

to  nonresident    361 

Public  policy  may  determine  whether  it  is  abridged 361 

Regulation  of,  in  business  affected  with  public  interest...   349 

Regulation  of,  in  interest  of  general  welfare 357 

Regulation  of,  in  interest  of  morals,  health,  or  safety 345 

Regulation  of,  to  prevent  oppression 353 

States  have  no  power  to  regulate  extraterritorial  contracts..  351 

Full  faith  and  credit  clause  — 

Application  of  to  personal  judgment  of  sister  states 90 

As  applied  to  decrees  of  divorce 122 

Not  applicable  to  judgment  without  jurisdiction 86 

Futures  — 

Dealing   in   regulated 346 

Gambling  — 

Sfe  FrxuRES;  Options. 

Money  lost  at,  made  lien  on  property 337 

Presumptions   in   connection   with   laws   against 181 

Property  owners  liable  for  injuries  from,  on  premises 343 

Gambling  instruments  — 

Forfeiture   of    337 

Presumption   from   possession   of 63,  1 80 

Visit  to  barricaded   house  where  exhibited 346 

Game  — 

Title  to    330 

Game  laxrs  — 

Presumptions  in  connection  with 181  note 

Garbage  — 

Disposal  of  in  cities  regulated 336 

Expense  incident  to  transportation  imposed  on  owners ....   339 

Garnishment  — 

See  Attachment, 

Gas  — 

Acquisition  of  property  for  supply  of.  a  public  purpose.,,,   260 
Companies  to  supply  as  affected  with  public  interest 317 


INDEX.  425 

Gas  —  Continued.  pjlQE 

Cost  of  shifting  gas  main  imposed  on  company  fumishing 

gas     341 

Property    in    natural 330 

Gettysburg,  battle   of  — 

Acquisition  of  property  to  mark  site,  a  public  purpose 260 

Grade  crossing  — 

Railroad  required  to  eliminate 340  note 

Grain  elevators  — 

Business  of  affected  with  public  interest 316  note,  317 

On  railroad  rights  of  way 351 

Grand  jury  — 

Indictment  by,  in  federal  court,  guaranteed  by  constitution..   103 
Indictment  by,  in  state  courts,  matter  of  local  law 163 

Grist  mills  — 

Business  of,  affected  with  public  interest 316  note 

Grotins  — 

Uses  term  eminent  domain 253 

Guardian's  bond  — 

Sale   without    40 

Habeas  corpus  —  ■ 

Dismissal  of  writ  by  appellate  court 168 

Not  available  as  writ  of  error 169 

Hackmen  — 

Business  of  as  affected  with  public  interest 317 

Hale,  Sir  Matthew  — 

On  business  affected  with  public  interest 314 

Harbor  lines  — 

Establishing,  not  a  taking 394 

Hawaii  — 

Entitled  to  all  constitutional  guaranties 200 

Hearing  — 

See  Notice  and  Hearing. 

Appeal  or  review  not  essential  to 81,   169,  211 

Before  executive  officer   sufficient i?0 

By   administrative    officials   enforced   by   mandamus    or   in- 
junction       73 

Essential   in   proceeding  in  rem 100 

Implied  in  public  sitting  after  notice 83,  84 

State  statute  providing  for,  construed 242 

Striking  out  answer  held  denial  of 170 

Unnecessary    after   plea   of    guilty 80 

Waiver  of  right  to  by  failure  to  claim 73 


426  INDEX. 

Heir-  PA™ 

Expectancy  of  not  vested 1^7 

Highways  — 

Acquisition  of  property  for,  a  public  purpose 257 

Liability  of  owners  of  cattle  for  injuries  to 186,  342 

Homestead  — 

Retrospective  laws  increasing,  held  void 177 

Retrospective   laws   reducing,   whether  valid 177 

Horseshoeing  — 

Statute  regulating  trade  of 356 

Immigration  law^s  ^ 

See  Alien. 
Impairment  of  obligation  of  contracts  — 

See  Obligation  of  Contbacts. 

And  the  police  power  of  the  state 304 

Constitutional  clause  against  — 

Applies  to  contracts  executed  and  executory 151 

Applies  to  contracts  of  the  state 151 

Applies  to  grants  to  corporations 151 

Federal   government  not   bound   by 152-153 

History  of    148,  150 

Not  violated  by  antecedent  laws 152 

Protects   only  vested   rights  arising  out   of   contract..    151 

Protects  true  contracts 150 

Qwasi-contracts  not  protected  by 150 

Relation  of  to  due  process 152 

Retrospective  legislation  not  forbidden  by 153 

States  bound  by    152 

Imports  — 

Appraisement  of    242 

Inalienable  rights  — 

See  Rights  Pbotected  by  Due  Process. 

Alienable  by  due  process 142 

Enumerated  in  Declaration  of  Independence 138 

Incorporeal   hereditaments  — 

Situs  for  taxation 218 

Subject  to  eminent  domain 283  note 

Indeterminate  sentences  — 

ProvisKin   for    344 

Indictment  — 

See  Grand  Jury. 

Existence  of  defects  in,  for  state  courts 108 

Sufficiency  of,  for  state  courts 168 


INDEX.  427 

Indictment  —  Continued.  page 

Whether  acts  indictable  for  state  courts 168 

Whether  defects  in  indictment  waived,  for  state  courts....   168 

Infant  — 

Oath  of  on  enlistment  made  conclusive  on  question  of  age. .    185 
Sale  of  infant's  land  by  guardian 40 

Informer  — 

Right  to  recover  money  lost  in  play  given  to 337 

Inheritance  taxes  — 

See  Succession  Taxes. 

Injunction  — 

Against  enforcement  of  judgment  in  tort 161 

Hearing   enforced    by 73 

Right  to,  to  stay  taxes  made  dependent  on  giving  security.  .    178 

Innkeeper  — 

Business  of,  affected  with  public  interest 316 

Insane  persons  — 

See  Lunatics. 

Insolvent   laxvs  — 

See  Bankrupt  and  Insolvent  Laws. 

Insurance  — 

Regulation   of,    by    states 351 

Interest  — 

As  penalty  for  nonpayment  of  taxes 234 

Future,   on   judgments   not   vested 323 

International  lax?  — 

See  Law  of  Nature. 
Requires  notice  and  hearing 75 

Interstate  commerce  — 

Regulation  vested  in  national  government 217,  304 

Intoxicating  liquors  — 

Articles  used  in  connection  with  illegal  traffic  forfeited....   327 

Double  license  required  from  druggists  for  sale  of 364 

Laws  forfeiting  as  penalty  for  illegal  traffic 337 

Manufacture  and  traffic  in,  regulated 34G 

Presumptions  in  connection  with  traffic  in 181  note 

Property  owners   liable  for   unlawful   sale   on  premises....  343 

Irrigation  — 

Acquisition  of  property  for,  a  public  purpose 259 

Constitutionality  of  acts  allowing  condemnation   for 266 

Irrigation  district  — 

Formation  of,  notice  and  hearing 243 


428 


INDEX. 


Johnson  grass  —  PAGE 

Railroads  liable  for  allowing  to  mature 342 

Joint  debtor  acts  — 

Validity  of  judgment  under 97  note,  100  note 

Joint  tenants  — 

Expectancy  of  survivorship  not  vested 157 

Judgment  note  ^ 

Validity  of  judgment  confessed  on,  in  sister  state 96 


Judgments  — 

See   Full  Faith  and  Credit  Clause;   Jurisdiction; 
Proceedings  in  Rem;  Process,  Service  of. 
Collateral  attack  — 

Errors  of  court,  not  ground  for 89 

Want    of   jurisdiction    or    jurisdictional    facts,    ground 

for    86,     88 

Domestic  — 

Due  process  required  in,  under  Fourteenth  Amendment..     91 
Status     dependent     on     local     law     before     Fourteenth 

Amendment   91 

Future  interest  on,  subject  to  change 328 

In  personam  — 

Against  nonresidents  by  prior  consent 93 

Personal  service  or  voluntary  appearance  essential ....     89 

Status  in  sister  states 90 

Status  of  in  state  of  rendition 90 

In  rem  — 

Acts  equivalent  to  seizure  sufficient 107 

In  rem  and  quasi  in  rem 108 

Personal  notice  not  essential 109 

Presence  and   seizure   of  res  essential 107,  109 

Seizure  gives  jurisdiction  subject  to  due  process 109 

Seizure  no  warrant  for  personal  judgment Ill 

In  tort  not  a  vested  right 162 

Of  sister  states 86 

Rule  to  show  cause  against,  is  due  process 77 

Statute  allowing  entry  of  against  nonresident  on  five  days' 

notice   '  ^ 

Judicial  powers  — 

See   Administrative   Officers;    Separation   of   Gov- 
ernmental Powers. 

Devolved  on  administrative  officials 163 

Involved  in  administrative  action  under  police  power 368 


INDEX.  429 

Judiciary  —  page 

See  Separation  of  Governmental  Powers. 

Action  of,  limited  by  due  process 27 

Jadicium  parium    IG,  24,     25 

And   jury   trial 5  note 

Jurisdiction  — 

See   Appearance;    Bankrupt   and    Insolvent   Laws; 
Crimes  and  Penalties;  Divorce  Decrees;  Judg- 
ments; Process,  Service  of. 
Collateral  attack  — 

Judgment  arbitrarily  transferring  property  subject  to. .    171 

Consent  or  notice  essential  to  acquisition  of 85 

Essential  to  due  process 85 

Existence  of  nuisance  a  jurisdictional  fact 373 

Extent  of  — 

Acquired  by  consent 87 

Equitable  over  extraterritorial  property 105 

Over  persons  and  things  in  territory 87,     90 

Primitive  law  required  consent  to 85  note 

Jury  — 

Impaneling  in  federal  courts 54  note 

Jury  trial  — 

And   judicium   parium 5 

By  jury  with   alien  member 168 

Erroneous  denial   of 41 

Not  essential  to  due  process 53,    162,  233,  371 

Right  to  depends  on  state  laws 162 

Jus  gentium  — 

See  Law  of  Nature. 

Justice  — 

Definition  of  in  Justinian's  Institutes 2,  51  note 

Distribute  justice 2  note,  51  note 

Kent,  Chancellor  — 

On    vested    rights 143 

King  can  do  no  wrong 24  note 

King,  Rnf us  — 

Proposes  clause  protecting  contracts  in  federal  convention.  .    148 

King's  council  — 

Early  history  of,  and  Parliament 7 

Labor  — 

Hours   of,   regulated 347 

Land  Department  — 

Finding  of  fact  by  officials  of,  final 369 


430  INDEX. 

Landings  —  PAGE 

Acquisition  of  property  for,  a  public  purpose 258 

LandoTrner  — 

Statute  requiring  to  ciean  streams 70 

Laundries  — 

Washing  and  ironing  in,  regulated 313 

Law  — 

Its  progressive  nature  illustrated 54-55 

La^v^  of  God  — 

See  Law  of  Nait'ee. 

Iiavsr    of   nature - 16 

Due  process  essential  to 73 

Use  interchangeable  with  jus  gentium  or  law  of  God 2 

JjSLW  of  tlie  land  — 

Equivalent  to  due  process  of  law 10,     16 

Lawyer  — 

Rights  in  profession  of 335 

Legislature  — 

See   Eminent    Domain;    Police   Power;    Procedube; 
Taxation. 

Action  of,  limited  by  due  process 28 

May  not  exercise  judicial  power 64 

Paramount  powers  of  state  reside  primarily  in 201 

Statute  assigning  judicial  powers  to 71 

Levees  — 

Acquisition  of  property  for,  a  public  purpose 259 

In  Louisiana  ownership  subject  to  easement  for 286 

Levy  of  taxes  — 

Is  legislative  function 209 

Libel  — 

See  Defamation. 
Libel  in  admiralty  — 

Is   in  rem 109 

Liberty  — 

Defined    140 

Historical  content  of  term 140  note 

Includes  right  to  freedom  of  contract ' 140 

Includes  right  to  pursue  lawful  calling 140 

May  be  lawfully  curtailed 140  note 

Subject  of  state  regulation 343 

Liberty  of  subject  — 

Debates  in   Parliament  on 13,     14 


INDEX.  431 

License  —  page 

As  police  regulation  distingrnshcd  from  tax 363 

Constitiites  no  waiver  of  further  regiilation 364 

Imposed  as  tax  or  as  police  regulation 363 

Permits  for  acts  generally  forbidden 365 

Who  has  authority  to  grant 364 

Lien  — 

See  Mechanics'  Lien. 

On  property  for  nonpayment  of  occupation  tax 235 

On  property  for  penalties  for  imlawful  use 337 

Proceeding  to  enforce  equitable  lien  is  in  rem 115 

Life  — 

Right  to,  defined 139 

Life,  liberty,  and  property,  riglits  of — 

See  Rights  Protected  by  Due  Process. 

Lighthouses  — 

Acquisition  of  property  for,  a  public  purpose 257 

Limitation  of  actions  — 

Bar  in  case  of  debt  and  by  adverse  possession  distinguished..  173 

€rOverned  by  lex  fori 171 

Retrospective  statute  of,  constitutional 171 

Rights  under  statutes  not  vested 171 

Subject  to  change  by  legislature 172 

Whether  complete  statutory  bar  gives  vested  right 173 

Liquor  laxv^s  ^ 

See  Intoxicating  Liquors. 

Local  assessments  ^ 

See  Special  Assessments. 

Long  and  short  haul  — 

Clause  in  state  statute  as  to 319  note,  370 

Louisiana  — 

Riparian  rights  in  subject  to  easement  for  levees 286 

Lunatics  — 

Involuntary  confinement  of,  held  valid 344 

Presence  at  inquisition  not  essential >' 

Question  of  lunacy  determined  by  administrative  officials..  163 

Rights  of,  regulated  in  their  own  interests 344 

Lynching  — 

Of  prisoner  in  federal  custody  as  denial  of  due  process.  .  .  .44  note 
Of  prisoner  in  state  custody  as  denial  of  due  process 44-48 


432  INDEX. 

Magna  Carta —  PAGE 

Chapter  39  of,  17  John  1215  — 

Contents  of,  and  additional  provisions  in  reissues 5 

In   fourteenth   century   statutes 8-10 

Numbering  of,  in  reissues  of  charter 4  note 

Quoted    3 

Traditional  interpretation  of 6,       8 

True  meaning  of 5 

History -t 

Rights  of  property  enumerated  in 138  note 

Malicious  prosecution  — 

Statutes  allowing  jur\'  to  find  prosecution  malicious 179 

Statutes  allowing  jury  to  fix  prosecutor  with  costs 179 

Mandamus  — 

Hearing   enforced    by 73 

Right  may  be  taken  away  if  legal  remedy  remains 175  note 

Market  quotations  — 

Business  of  furnishing  as  affected  with  public  interest 317 

Markets  — 

Acquisition  of  property  for  public,  a  public  purpose 259 

Keeping  of,   regulated 347  note 

Marriage  — 

As  contract  and  as  status 123 

Martial  lav?  — 

Declared  to  violate  law  of  the  land  in  Petition  of  Right.  ...      13 

Master  and  servant  — 

See  Railroads. 

Fellow-servant  rule  abolished  as  to  railroads 312,  342 

Statute  compelling  corporations  to  pay  servants  at  stated 

times     355 

Statute  forbidding  certain  corporations  to  fine  servants ....    355 
Statute  forbidding  certain  corporations  to  withhold  wages.   355 
Statute  forbidding  corporations  to  maintain  stores  for  em- 
ployees     355 

Statute   forbidding  corporations   to   receive   assignments   of 

future  wages   355 

Statute    forbidding    payment    by    corporations    except     in 

money 355 

Statute  limiting  hours  of  employment  of  bakers 356 

Statute  protecting  employees   held   unconstitutional   as   re- 
straining       355 

Statute  requiring  miners  to  be  paid  by  weight  of  coal 356 


INDEX.  433 

BCaxiin  —  page 

Damnum  absque  injuria 293,  338 

King  can  do  no  wrong 24  note 

Mobilia  sequuntur  personam 120,  222,  223 

Salu^  populi  est  suprema  lex 203,  205 

Sic  utere  tuo  ut  alienum  non  Iwdas 203 

Suum  cuique  tribuere 2  note,  51  note 

Meclianics'  lien  — 

Not  an  interference  with  freedom  of  contract 359 

Remedy  on,  changed 175  note 

Medicine  — 

See  Physician. 

Mileage  — 

As  basis  of  taxation 225 

Military  authority  — 

Acts  committed  under 162 

Milk  — 

Traffic  in,  regulated 347 

Mills  — 

Business  of  conducting,  as  affected  with  public  interest 316 

Wliether  construction  of,  under  mill  acts,  a  public  purpose.  264 

Mines  — 

Administrative  officials  to  classify  for  inspection 368 

Expense  of  inspection  imposed  on  owners 340 

Inspection  of,  by  administrative  officials 371 

Statute  regulating  payment  of  miners 356 

Temporary  interruption  in  use  of 293 

Ministerial  o£S.cials  — 

See  Administbative  Officers. 

Mobilia  sequuntur  personam 118 

Maxim   a   fiction 120 

Money  — 

Whether  subject  to  eminent  domain 283  note 

Monition  — 

In  proceeding  in  rem 110 

Monopolies  and  combinations  — 

Defined    357,  358 

Regulation  of,  under  police  power 357 

Montesquieu  — 

Theorv  of  separation  of  governmental  powers  due  to 69  note 

28 


434  INDEX. 

Mortgages  —  PAGE 

See  FoEECLOstrnE. 

Situs  of  121  note 

Taxation  of  lands  under 219 

Taxation  of,  where  mortgagee  is  nonresident 220 

Mortimer,  £arl  of  — 

Attainder     65 

Municipal  corporations  — 

Constitutional  provisions  read  into  grant  of  power  to 82 

Exercise  of  police  power  by 303 

Exercise  of  powers  limited  by  due  process 60 

Existence  of  nuisance  a  jurisdictional  fact 373 

Imposing  cost  of  shifting  gas  main  on  company  furnishing 

gas     341 

In  England  restrained  by  due  process 17,  25 

Legislature  may  deprive  of  taxing  power 212 

Power  of  taxation  delegated  to 212 

Power  to  abate  nuisance  delegated  to 373 

Regulation  of  prostitution  by 338 

Right  to  erect  water  works 332 

Taxation  of  property  annexed  to 213 

Natural  gas  — 

Property  in    330 

Natural   justice  — 

See  Law  of  Xaturk. 

Natural  price  — 

Mediaeval  theory  of 316  note 

Navigable  ixraters  — 

Extent  of  riparian  rights  in,  depends  on  local  law 285 

Navigation  — 

United  States  may  take  lands  for  purposes  of 283 

Navy  yards  — 

Acquisition  of  property  for,  a  public  purpose 257 

Necessity  — 

In  eminent  domain  — 

Circumstantial,  how  far  legislative  or  political  question..  273 

Courts  may  review  legislative  decision 276 

Decision   of  circumstantial   necessity  may  involve  con- 
fiscation      275 

Essential   for  taking  property 272 

Intrinsic  a  legislative  question 272 

Intrinsic  and  circumstantial 272 


INDEX.  435 

Necessity  —  Continued.  PAGE 

In  eminent  domain  —  Continued. 

Legislative  delegation  of  power  to  decide 274 

Legislature  acting  directlj^  may  decide  finally 274 

Only  reasonable,  not  absolute,  is  essential 277 

Negligence  — 

Of  duties  imposed  for  public  protection  punished 313' 

Statutes  creating  presumption  of 185,  187 

Negro  race  — 

Rights  under  the  Constitution 20,  21,  22 

Netps  agency  — 

As  affected  with  public  interest 317 

Nolle  prosequi  — 

Entry  of  on  certain  counts 168 

Northxrest  Territory,  ordinance  for  government  of ...  23  note 

Provision  in,  protecting  contracts 148 

Who  author  of  clause  protecting  contracts  in 148  note 

Notice  — 

See  Notice  and  Hearing. 

Legislature  may  prescribe  length  of 77 

Must   be   reasonable 77 

Purpose  of   78 

Reasonableness  of,  a  federal  question 39 

Statute  requiring  five  days  for  nonresidents 79 

Time  and  place  of 78 

Notice  and  hearing  — 

See    Administrative    Officers;    Eminent    Domain; 
Jurisdiction;   Police  Power;  Taxation. 

Dispensed  with  in  certain  cases 80,  371 

Essential  to  due  process  or  law  of  land 73,  74,  76,  82 

Extent  of  in  cases  of  aliens 191 

In  proceedings  for  contempt SO,  169,  170 

Must  be  adapted  to  the  case 79,  238 

Must  be  required,  not  matter  of  grace 82 

Personal  presence  not  generally  essential  to 77 

Postponed  in  cases  of  necessity 372 

Provision  for  may  be  express  or  implied 82 

Required  by  common  law 75 

Required  by  international  law 75 

Required  by  law  of  nature 73 

What  is  essential  to  constitute 76 


436  INDEX. 

Nuisance  —                                                                                            page 
Acquisition  of  property  for  abatement  of,  a  public  purpose.   259 
Existence   of,    is   jurisdictional,   when    abated   by   local   au- 
thorities     373 

Property  destroyed  as,  in  advance  of  notice  and  hearing. . .  .   373 

Obligation  of  contracts  — 

See  Impairment  of  Obligation  of  Contracts. 

Judicial  definitions  of 149,  150 

Phrase  found  in  Roman  law 149 

Phrase  in  Constitution  attributed  to  Wilson 149 

Taxation  of  foreign-held  bonds  held  impairment  of 119,  120 

Occupation  tax  — 

Made  lien  on  property 235 

On  hiring  persons  to  labor  outside  the  state 313 

Office  — 

As   property    333 

Oleomargarine  — 

Statutes  prohibiting  and  regulating  traffic  in 348 

Operating  expenses  — 

Reckless,  as  affecting  rates 324 

Opportunity   to   defend  — 

See  Notice  and  Hearing. 

Options  — 

Dealing  m   regulated 346 

Ordinance  — 

Regulation  of  prostitution  by 338 

Taxing,  provision  for  notice  in 82 

Paramount  rights   of   state  — 

Must  be  exercised  in  accordance  with  due  process 206 

Private  rights  must  yield  to 201 

Taxation,  eminent  domain  and  police  power  contrasted .....  201 
What  are   201 

Park  — 

Acquisition  of  property  for,  a  public  purpose 260,  288 

Regulation  of  right  to  speak  in 329 

Parliament  — 

Omnipotence  of    26  note,     29 

Partition  — 

Piocrpilinp'  for  is  in  rem 109,  113 

Partnerslj.ip  — 

See  Process,  Service  of. 


INDEX.  437 

Pension  —  PAGE 

Statute  creating  fund  for  pensioning  policemen 328 

Per  legem  terrae  — 

See  Law  of  the  Land. 

Per  legem  terrce 6  note,  1 5,     25 

Permits  — 

See  License. 

Perpetuities  and  monopolies  proMblted 62 

Personal  property  — 

See  Situs. 
Whether  proceeding  in  rem  binds  title  to 115 

Persons  protected  by  due  process  — 

See  Corporations. 

Aliens  as  190 

Due  process  a  right  of  all 189 

Inhabitants  of  acquired  territory 197 

Petition   of   Right 13 

Petroleum  — 

Property  in  330 

Physician  — 

Examination  and  license  of,  regulated 347 

Power  of  state  medical  board  over  qualifications  of 1G3 

Rights  in  profession  of 335 

Statutory   presumption   as   to   character   of,   applied   retro- 
spectively      183 

Pier  — 

Consequential  damage  from  building 293 

Pleading  — 

See  Amendments  to  Pleading  ;  Supplementary  Plead- 
ings. 

Included  in  procedure 159 

Policemen  — 

Statute  reserving  part  of  salary  for  pensions 328 

Police  power  — 

See  Business  Affected  with  Public  Interest;  Free- 
dom   OF     Contract;     License;     Regulation    of 
Rates;  Taking  of  Property. 
Administrative  officers  to   carry   out   scheme   of   regulation 

under    303,  365 

Classification  under    311 

Business  properly  regulated  though  other  not 312 

Harmless  occupations  pursued  in  a  dangerous  manner. .   313 


438  INDEX. 

Police  power  —  Continued.  PAGE 

Classification  under  —  Continued. 

Similar  employments  distinguished  by  tendencies 313 

Specially  dangerous  employments  regulated 312 

Compensation  not  required 203,  303 

Defined  and  described 201  note,  300 

Contracted  with  other  paramount  powers  of  state 203 

Strict,  distinguished  from  legislative  power 301 

Delegation  of  to  municipalities 303 

Deprivation  of  liberty  under 343 

Freedom  of  contract  and  of  business  regulated 345 

In  interest  of  public  morals,  health,  and  safety. .  .  .300,  345 

In  interest  of  public  welfare 343,  357 

In  order  to  prevent  fraud 347 

In  order  to  prevent  oppression 353 

Deprivation  of  property  under 328 

Confiscation  or  distinction  of  property  as  penalty 337 

Consequential  damages  from  police  regulation 338 

Enjoyment  of  property  limited 336 

Imposition  of  expenses  incident  to  police  regulation ....   339 

New  duties  and  liabilities  created 342 

Private  rights  must  be  involved 328 

Profession  or  office  as  property 333 

Direct  legislative  act  under,  is  due  process 366 

Legislature   exercises    300 

Not  extraterritorial    304 

Notice  and  hearing  — 

Application  of  police  regulation  to  circumstances  gen- 
erally requires    370 

Dispensed  with  when  necessary  under  statute  devolving 

discretion  on  executive    371 

Jury  trial  not  essential  to 371 

Legislature  may  act  directly  without 319 

Postponed  in   cases  of  necessity 372 

Eight  to   destroy   before  hearing   limited   to   cases    of 

necessity    375 

Value  of  property  destroyed  as  aflFecting  necessity.  .   375 
Right  to  destroy  before  hearing  not  admitted  in  some 

states    377 

Reasonableness  of  exercise  — 

An  essential  of  police  regulation 306 

As    determining    between    police    power    and    eminent 

domain    206,  309 

Primarily  for  legislature,  ultimately  for  court 306 

Required  both  in  general  and  local  regulation 308 

Tests  of,  stated   307 


INDEX.  439 

Police  potrer  —  Continued.  page 

Separation  of  governmental  powers  — 

Carrying  out  police  regulation  permitted  to  executive.  .  365 

Judicial  duties  required  of  administrative  officials ....  366 

Whether  a  delegation  of  legislative  duties 366 

Matters  of  detail  delegated  to  administrative  officials..  366 

State  legislation  under  — 

Fourteenth  Amendment   305 

Must  not  trench  on  federal  powers 303 

Obligation  of  contracts 304 

Regulation  of   commerce 304 

Whether  action  under  is  taking  of  property 204 

Policy  slips  — 

Possession  by  officer  of 63 

Porto  Rico  — 

Status  of  inhabitants  of 192  note 

Possession  — 

Presumptions  from   180 

Possibility  — 

Distinguished  from  vested  right 157 

Postal  laws  — 

Ruling  of  postmaster-general  on  addressee's  right  to  mail 

matter    369 

Ruling  of  postmaster-general  on  mailable  matter 369 

Post  offices  — 

Acquisition  of  property  for,  a  public  purpose 257 

Practice  — 

Included  in  procedure 159 

Prerogative  of  king  — 

To  imprison  by  special  mandate 11,  13 

Challenged  by  Parliament  as  contrary  to  due  process .  .  12 

To  imprison  on  writs  quihusdam  cert  is  de  causis 11 

Presumptions  — 

Legislature  may  create  prima  facie 180 

Must  be  naturally  connected  with  facts 181 

None  of  denial  of  fundamental  rights 160 

Of  negligence  from  certain  acts 185,  187 

On  questions  of  contract  state  may  create  conclusive 184 

Whether  legislature  may  create  conclusive 181 

Private  international  law  — 

See  Situs. 

Private  roads  — 

Whether  construction  of,  a  public  purpose 264 


440  INDEX. 

PriTilege  —  PAGE 

Defamatory  statements  in  pleadings  held  privileged 161 

Probate  — 

Proceedings  for,  held  in  rem 116 

Procedure  — 

Defined   159 

Includes  pleading,  practice,  and  evidence 159 

In  criminal  cases    164 

Entry  of  plea  involves  due  process 165 

Instances  where  due  process  not  involved 168 

Jurisdictional  questions  involve  due  process 165 

Presence  in  appellate  court  not  essential 166 

Right  of  accused  to  be  present 165 

Whether   presence  essential   under   Fourteenth   Amend- 
ment      167 

Laws  affecting  heirs  ex  post  facto 147 

No  presumption  of  denial  of  rights .  160 

No  vested  rights  in 160 

Within   control   of   state 160 

Proceedings   in  rem   — 

All  proceedings  either  in  rem  or  in  personam, 112 

Conception   extended   to   proceedings   not  begun  by  seizure. 

112,  116 

History  of,  against  inanimate  objects 113  note 

Number  of  persons  afi'ected  suggested  as  test 117 

Political  necessity  as  determining  whether  proceeding  is..  .  116 

Strictly  in  rem  are  against  property  itself 108 

Process,  service  of  — 

See  FoREiGx  Corporations. 

Agreement  that  nonresident  stockholder  bound  by,  on  corpo- 
ration    97-99 

Constructive  — 

As  validating  suit  determining  title 115 

On   foreign    corporations 97 

Effect  of  nonresident's  prior  consent  to  — 

As  estopping  denial  of  state  court's  jurisdiction 95 

Doctrine  under  Federal  Constitution 94 

General  doctrine  of  international  law 93,  94 

What  amounts  to  consent 94  note 

Nonresident  designating  agent  to  receive 93 

On  partnership,  efl'ect  on  nonresident  partner 99,  100 

Personal  — 

Essential  to  judgment  in  personam 89,  92 

Outside  of  state  gives  no  jurisdiction 89 


INDEX.  441 

Profession  —  page 

As  property    333 

Property  — 

Arbitrary  transfer  from  one  to  another  not  due  process.  ...  170 

Defined  141 

Includes  right  to  freedom  of  contract 141 

Includes  right  to  labor 141 

In  profession  and  offices 333 

Is  nomen  generalissimum 283 

Laws  limiting  enjoyment  of 336 

Of  states  subject  to  legislative  regulation 329 

Owners  of,  liable  for  injuries  from  gambling  on 343 

Private  rights  subordinate  to  state  welfare 337 

Right  of,  distinguished  from  thing  possessed 141 

Right  of,  protected  by  due  process 155 

Subject  to  lien  for  penalties  for  unlawful  use 337 

Use  of,  for  advertising 310 

Within  right  of  eminent  domain 283 

Prostitution  — 

Regulation  of    338,  346 

Public  amusement  — 

Regulation  of  places  of 317 

Publication  — 

In  proceeding  in  rem 110 

Public  interest,  business  affected  i^itb  — 

See  Business  Affected  with  Public  Interest. 

Public  morals,  bealtb,  and  safety  — 

Regulation  must  bear  real  relation  to 345 

Public  office  — 

No   vested    right   in 333 

State  decision  of  right  to  state  office  raises  no  federal  ques- 
tion     335 

Public   policy  — 

May  determine  whether  freedom  of  contract  abridged 361 

Public  proclamation  — 

In  proceeding  in  rem 110 

Public  purpose  — 

See  Taxation. 

In  taxation  and  eminent  domain  distinguished 228 

Prof.  J.  B.  Thayer  on  legislative  power  to  determine 256  note 


442  INDEX. 

Quarantine  —  PAGE 

Expense  incident  to,  imposed  on  ships 339 

State  regulation  of 347 

Railroad  commission  — 

Expenses  of,   imposed  on   railroad 340 

Ruling  of  state,  held  final 370 

Railroads  — 

See  Assessment;    Common   Cabeieb;    Regulation  of 
Rates;  Street  Railways. 

Acquisition  of  property  for,  a  public  purpose 257 

Business  of,  affected  with  public  interest 316 

Classified  for  assessment  in  taxation 63 

Deprived  of  benefit  of  fellow-servant  rule 342 

Expense  of  safeguards  for,  imposed  on 340 

Liability  for  allowing  Johnson  grass  to  mature 342 

Mileage  as  basis  of  taxation 224 

Must  bear  expenses  of  physicaj  examination  of  engineers .  .  .    340 

Passenger  trains  required  to  stop  at  county  seats 316  note 

Reasonableness  of  rates,  determined  by  effect  on  whole  line.   322 

Required  to  build  bridge 340  note 

Required  to  eliminate  grade  crossings 340  note 

Required  to  erect  depots 340  note 

Required  to  fence  right  of  way 342 

Required  to  maintain  viaduct 340  note 

Required  to  make  improvements  at  their  own  cost 340 

Required  to  pay  employees  on  discharge 350 

Required  to  stop  trains  in  cities 340  note 

Statutes  penalizing  failure  to  settle  small  claims 350 

Steam  locomotives  in  streets  prohibited 203  note 

Train  connections  between,  enforced 340  note 

Rates  — 

Regulation  of,  see  Regulation  of  Rates. 

Real  property  — 

Proceeding  to  quiet  title  is  in  rem 114,  115 

Reassessment  — 

Sufficiency  of  notice  of 77,     78 

Redemption  from  execution  — 

See  Execution. 

Reformatories  — 

Imprisonment  of  young  criminals  in 344 

Refrigerator  cars  — 

Average  number  in  state  as  basis  of  taxation 225 


INDEX.  443 

Registration  —  page 

Preriuuiptions  from,  of  deeds 180 

Regulation  of  rates  — 

By  court  of  visitation 164 

Courts  may  set  aside  unreasonable  rates 320 

Does  not  include  power  to  confiscate 319 

Legislative  power  to   regulate 318 

Reasonableness  of  rates  — 

Arbitrary    discrimination    prohibited 327 

As  affected  by  nature  of  business 325 

As  to  existing  rates,  a  legislative  question 319 

Elements  of  reasonableness 321 

Elements  to  be  considered  in  estimating  value 323 

Fair  return  as  test 324 

Interest  of  mortgage  bondholders  to  be  considered 322 

Interest  of  public  to  be  considered 324 

Judicial  question  when  delegated  by  legislation 319 

Of  railroad  determined  by  effect  on  entire  line 322 

Sufficiency  of  allegation  to  raise  question 322 

Value  of  property  employed  to  be  considered 322 

Where  business  is  in  the  nature  of  private  enterprise.  .   326 

Where  business  is  one  which  state  might  perform 325 

What  amounts  to  notice  and  hearing  in  proceedings  for ....   378 

Remedies  — 

Given  by  statute  as  against  prior  rights  not  vested 161 

May  be  changed  if  effective  remedy  left 174 

No  vested  right  in  particular  remedies 160 

Power  of  legislature  over 174 

State  may  provide  additional 175 

Repair  shops  — 

Acquisition  of  property  for,  a  public  purpose 258 

Retrospective  lamrs  — 

See  Vested  Rights. 

Imposing  penalties  for  nonpayment  of  taxes 234 

Not  favored 153-155 

Reversion  — 

Possibility  of  reversion  not  vested 157 

Revetments  — 

Consequential  damage  from  construction  of 293 

'Re-vievr  — 

See  Appeal;  Notice  and  Hearing. 

Right  of  action  — 

Attaching  conditions  to 178 

Statutory  regulation  of  existing 178 


444 


INDEX. 


Right  of  way—  page 

Grain  elevators  and  warehouses  on 351 

Railroads  required  to  fence 342 

Rights  — 

See  Inalienable  Rights;  Vested  Rights;  Paeamount 
Rights  of  State. 
Fundamental,  what  are 153,  155 

Rights   of  man  — 

Conservatism  of  courts  in  declaring 57 

Rights  protected  hy  due  process  — 

See  Vested  Rights. 

Life,  liberty,  and  property 138 

Classified  as  natural  and  inalienable 138 

Enumeration   representative  only 139 

Recognized,  not  conferred  by  constitution 138 

Subject  to  paramount  state  authority 141 

Riparian  oT^ner  — 

Dam  a  violation  of  rights  of 23 

Riparian  rights  — 

See  Kavigable  Watebs. 

Rnle  to   shoTir  cause  — 

Why  judgment  not  paid  is  due  process 77 

Sailors  — 

Rights  of,  subject  to  state  regulation 353 

Sale  nnder  ezecntion  — 

See  Execution. 

Salisbury,  Countess  of — 

Attainder   66 

Sanity  — 

See  Lunatics. 

School  districts  — 

Property   riglits   of 332 

Schools,  public  — 

Acquisition  of  property  for,  a  public  purpose 257 

Seal  — 

Regulation  of  use  of  state  seal 333 

Seneca  — 

Lines  from,  embody  principle  of  due  process 2 

Sentence  — 

Before  de  facto  judge 188 


INDEX.  445 

Sentence,  exeontion  of  —  page; 

Appellate  court  fixing  time  of 166, 169  note 

By  electricity  169  note 

Depends  on  local  law 169 

Governor  fixing  time  of 169  note 

Separation  of  governmental  poxrers 68-73 

Courts  reluctant  to  avoid  statutes  for  failure  in 70 

Derived  from  Montesquieu 69  note 

Difliculty  of  demarkation 69 

Judicial  and  legislative  functions  committed  to  same  body.  .   370 

Judicial  functions  exercised  by  executive  oIHcials 71-73 

Question  generally  of  local  law 71 

Required  by  constitution 69 

Theory   of,   criticised 69  note 

Service  of  process  — 

See  Process,  Service  of. 

Servitudes  — 

Additional  in  property  condemned 284 

Seymour,    Lord   Admiral  — 

Attainder    of    67 

Sliips  — 

Situs   for  taxation 218  note 

Sister  state  judgments  — 

See  Judgments. 

Situs  — 

For  taxation  — 

Of  corporate  stock 120 

Of   debts    221 

Of  incorporeal  rigbts 218 

Of  intangible  personal  property 119 

Of   intangible   property 221 

Of  real  property  and  tangible  personal  property 218 

Of    tangible    personal    property    moved    from    state    to 

state    220,  225 

Of  intangible  personal  property 119 

Of  intangible  personal   property  for  various  purposes 121 

Of  personal  property 118 

Slander  — 

See  Defamation. 
Sleeping-car  companies  — 

Mileage  as  basis  of  taxation 225 

Soda-Axrater  fountain  — 

Dispensing  drinks  from,  as  affected  with  public  interest...    317 


446  INDEX. 

Special   administrator—  FAOE 

Settlement  with  regular  representative  without  giving  bond.  161 

Special  assessments  — 

According  to  benefits 247  note 

Boundaries  of  taxing  district,  question  for  legislature 247 

By  area   -■i''  note 

By   front- foot   rule 247  note 

By  value  of  property 247  note 

Legislative  delegation  of  power  to  impose 248 

Legislative  functions  in  levying 246 

Levy  of,  depends  on  taxing  power 212 

Manner  of  apportionment,  for  legislature 247 

Necessity  of  hearing  by  local  authorities 248 

Necessity  of,  question   for  legislature 247 

Notice  of,  by  implication  in  ordinance 82 

Power  of  legislature  to  fix  absolute  rule  of  apportionment..    248 

Special  mandate  — 

See  Prerogative  of  King. 

Spur  tracks  — 

Question  of  necessity  of 277 

Whether  construction  of,  public  purpose 269 

Star  chamljer  — 

Court  of   7,     12 

States  — 

Contracts  by,  v.ithin  contract  clause  of  constitution 151 

Duty  to  provide  due  process  under  Fourteenth  Amendment.  36 
How  far  national  government  concerned  with  due  process  by.  35 
Subdivision  of,  into  territorial  units 332 

Station,  railroad  — 

See  Depots;  Railroads. 

Statns  — 

Plight  of  state  to  determine,  of  citizen 122,  127 

Statnte  of  frauds  — 

As    police    regulation 348 

Statnte  of  limitation  — 

See  Limitation  of  Actions. 
Stay  laxirs  — 

Validity  of    176 

Stock  — 

Situs  of,  see  Situs. 

Taxation  of  corporate 224 

Stockholders  — 

See  Process,  Service  of. 


INDEX.  447 

stock   yards—  ^^GE 

Acquisition  of  property  for,  a  public  purpose 258 

As  affected  with  public  interest 317 

Store-order  acts  — 

Constitutionality  of    354 

Streams  — 

Statute  requiring  landowner  to  clean 70 

Street  railw^ays  — 

Discrimination  in  taxing   211,  212 

New  York  law  taxing  franchises  of 227 

Submission  of  case  — 

Motion  to  set  aside  denied 161 

Succession  — 

See  Administration. 
Heir's  right  of,  not  vested 157 

Succession  taxes  — 

Operates  on  devolution,  not  on  property 222 

Summary  proceedings  — 

See  Contempt;  Taxation. 

Sunday  laxFS  — 

Constitutionality  of    357 

Supplementary  pleadings  — 

Right  to  file  denied 161 

Suretyship  — 

Judgment  against  principal  enforceable  against  surety....     96 

Survivorship  — 

See  Joint  Tenants. 

Taking  of  property  — 

Any  deprivation  of  use  is 292 

Both  eminent  domain  and  police  power  may  be  involved.  .  .  .   205 

By  damming  water 23 

Extent  of  limitation  of  use  determines  whether  there  is ...  .   309 

Injury  purely  consequential  is  not 292 

May  be  taken  for  certain  uses  only,  leaving  ownership  other- 
wise undisturbed   271 

Necessary  destruction  not  a  taking 205 

Penal  consequences  for  unlawful  use  not  a  taking 204 

Physical  invasion  is   292 

Police  power  does  not  require 303 

Proceeding  not  affecting  owner's  right  is  not 294 

What  is  292 

Whether  destruction  of  property  a  taking 310 


448 


INDEX. 


Taking  of  property  —  Continued.  page 

Whether  regulation  of  spite  fences  is 309 

Whole  lot  where  right  of  way  sufficient 276  note 

Taxation  — 

See  Exemptions   from   Taxation;    Occupation  Tax; 
Special  Assessments;  Situs. 
Assessment  — 

Discrimination  in  provision  for  review 211 

Legislature  provides   for 210 

Mileage  rule  as  basis  for 224 

Petitioner  for  tax  estopped  to  question 252 

Review  of  proceedings  not  essential 211 

Collection  of  taxes,  legislature  provides  for 210 

Delegation  of  power  of  — 

Not  to  private  corporations 212 

To  municipal  corporations 212 

Different  jurisdictions  may  tax  same  property 223 

Discrimination    in    levying 215 

Equality  of,  not  guaranteed  by  Fourteenth  Amendment.  ...   211 

Equating  taxes  to  benefits 202,  214  note 

Includes  power  of  apportionment 209 

Injunction  to  stay  collection 1"8 

Involves  power  to  destroy 208  note 

Legislature  may  classify  subject-matter  of 210 

Limitation  of  power  of  — 

By  due   process 215 

Must  be  for  public  purposes 217 

Only  persons  or  things  in  jurisdiction  may  be  taxed.  .  .   217 

State  may  not  tax  interstate  commerce 217 

State  or  nation  may  not  tax  agencies  of  other 217 

Notice  and  hearing  — 

Assessment  by  executive  official  requires 237 

By  board  of  equalization  sufficient 241 

By  executive  and  judicial  officers 236 

Essentials  of 241 

Implication  of,  from  provision  for  "  suit " 245 

In  statutes  imposing  general  taxes 238 

In  statutes  imposing  special  taxes 238 

Not  required  where  legislature  acts  directly 235 

On  appeal  from  assessment  sufficient 241 

On  legality  of  tax  includes  assessment 245 

Presence  of  property  owner  not  essential 241 

Required  when  legislature  delegates  decision  to  others.  236 

Specific  and  ad  valorem  taxes  distinguished 230  rote 

Statute  levying  tax  may  provide  notice 237 


INDEX.  449 

Taxation  —  Continued.  PAGE 

Power  of,  legislative,  not  judicial 209 

Proceeding  for,  against  nonresident  is  in  rem 114 

Public  purpose  of  — 

A  question  of  general  jurisprudence 230 

Courts  may  supervise  legislative  decision 229 

Essential  for  taxation 228 

Legislature  decides  what  is 229 

With  reference  to  local  or  general  taxes 231 

Security  against  abuse  of  power  of 208 

Selection  of  subject-matter 215 

Subject-matters  to  which   power  extends 209 

Summary  proceedings  for  collection  are  due  process..  .232,  234 

Taxing  districts,  determination  of,  matter  of  state  law..  .  .  213 

Taxpayer  receives  value  in  protection 202 

Valuation  of  property  for  — 

Elements  of  value  of  corporate 224 

Left  to  taxing  officers 246 

May  not  include  chattels  beyond  state 221 

Of  property  lying  in  different  jurisdiction 223 

Property  outside  state  must  be  excluded 224 

Tax  deeds  — 

Presumptions  from 180,  182 

Tea,  inspection  of  — 

By  administrative  officials  is  due  process 369,  372 

Telegraph  — 

See  Regulation  of  Rates. 

Acquisition  of  property  for,  a  public  purpose 257 

As  affected  with  public  interest 317 

Mileage  as  basis  of  taxation 225 

Telephone  — 

Acquisition  of  property  for,  a  public  purpose 257 

As  affected  with  public  interest 317 

Tenement  honses  — 

Expense  of  improvements  Imposed  on  owners 340 

Territory  — 

Incorporated  in  United  States 197 

Merely    annexed 198 

What  is,  entitled  to  all  constitutional  guaranties 199 

Territory  acquired  by  Spanish  'war  — 

Status  of  inhabitants 197  note 

Thayer,  Prof.  J.  B. — 

On   judicial   and   legislative   functions   in   exercising  para- 
mount powers  of  government 256 

29 


450  INDEX. 

Title-  P^«^ 

Action  to  try,  of  land  is  in  rem 113 

Proceeding  to  quiet,  is  in  rem 114 

Toll*  — 

Imposed  for  use  of  improved  waterway 340 

Torrens  Act  — 

Constitutionality  of    H*^ 

Tort  — 

Judgment  in,  not  a  vested  right 162 

Trades  — 

Unsanitary  and  ofiensive  trades  regulated 347 

Trial  — 

See  Notice  and  Hearing;  Hearing;  Procedure;  Tri- 
bunal. 
Before  de  facto  judge 168 

Tribunal  — 

Character  of,  usually  matter  of  local  law 162-164 

Truck  Acts  — 

Constitutionality  of    354 

Trusts  — 

See  Monopolies  and  Combinations. 

Turnpikes  — • 

Acquisition  of  property  for,  a  public  purpose 257 

Rates    prescribed    for 321 

United  States  — 

Supervisory  power  of,  as  to  due  process  under  Fourteenth 

Amendment   36 

Vaccination  — 

State  may  prescribe  compulsory 343 

Vested  rights  — 

See   Curative  Acts;    Impairment   of   Obligation   of 
Contracts. 

Affected   by   retrospective   laws 145 

As  limiting  scope  of  legislative  power 328 

Austin  on 142  note,  144  note,  156 

Laws  impairing,  not  favored 153 

Maxims  of  Roman  law  condemning  Impairment  of 153 

Mere  expectancy,  possibility,,  or  contingency  is  not 157 

None  in   procedure 160 

Protection  of,  by  constitutional  clauses  — 

By  clause  forbidding  bills  of  attainder 146 

By  clause  forbidding  ex  post  facto  laws ....  146 

By  clause  forbidding  impairing  obligation  of  contracts.  148 

By  guaranty  of  due  process 153 


INDEX.  451 

Vested   rights  —  Continued.  page 

Statute  of  descent  and  distributions  confers  no 157  note 

What  are   142-145,   155 

When  arising   from   contract   protected   by   contract  clause 

in  constitution   151 

Viaduct  — 

Railroad  required  to  maintain 340  note 

IVaiver  — 

Of  objection  to  juror  as  alien 168 

Of  right  to  hearing 73 

Whether  defects  in   indictment  waived,  question  for  state 

courts   168 

Warelionseiiien  — 

Business  of,  affected  with  public  interest 316 

Warehouses  — 

On  railroad  rights  of  way 351 

Water  — 

Companies  to  supply,  as  affected  with  public  interest 317 

Water  front  — 

Temporary  exclusion  from,  held  consequential 293 

Water   rates  — 

Fixed  by  local  authorities 320 

Water  rents  — 

Additional  remedy  to  enforce,  provided 175 

Water  supply  company  — 

Regulation  of  rates  of 323  note 

Water  supply  for  cities  — 

Acquisition  of  property  for,  a  public  purpose 259 

W^aterTirays  — 

Administrative  officials  to  fix  tolls  for 366 

Improvements  in,  defrayed  by  tolls 340 

W^aterworks  — 

Municipality  empowered  to  erect 332 

W^ebster,  Daniel  — 

Definition  of  due  process 49-51 

W^harfingers  — 

Business  of,  aflfected  with  public  interest 316 

"Wharves  — 

Acquisition  of  property  for,  a  public  purpose 258 

W^ills  — 

See  Probate. 
IVrit  qnibusdam  certis  de  cansis  <~ 
See  Prerogative  of  King. 


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